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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Digitized  by  tine  Internet  Arcinive 

in  2008  witii  funding  from 

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littp://www.arcliive.org/details/elementsinternatOOdavi 


THE    ELEMENTS 


OF 


INTERNATIONAL    LAW 

WITH 

AN  ACCOUNT  OF  ITS  ORIGIN,  SOURCES 
AND     HISTORICAL    DEVELOPMENT 


BY 


GEORGE    B.  DAVIS 

JUDGE  -  ADVOCATE    GENERAL,    U.    S.   ARMY,    FORMERLY 

PROFESSOR  OF  LAW  AT  THE  UNITED  STATES 

MILITARY   ACADEMY 


A    NEW    AND    REVISED    EDITION 


NEW  YORK   AND   LONDON 
HARPER   &   BROTHERS   PUBLISHERS 

1903 


T     ^  . 


Copyright,  1900.  by  GeoRgb  B.  Davis. 

^//  rights  reseni'd. 


PREFACE    TO    THE    REVISED    EDITION 


The   favorable  reception  accorded  to  the  first    edition  of 
this  work,  and  the  constant  and  extensive  use  which  has  been 
made  of  it  by  the  class  for  which  it  was  originally  intended — 
the  undergraduate  students  of  American   colleges  and   law- 
schools— have  suggested  the  propriety  of  a  general  revision  of 
=- the  text,  and  the  insertion  of  some  of   the  more  important 
cases  to  which  the  international  experience  of  the  last  fifteen 
_£.  years  has  given  rise.     The    volume    remains,  what    it  was  in- 
4rtended  to  be  from  the  first,  a  text-book  for  the  use  of  stu- 
dents ;  it  is  in  no  sense  a  manual,  still  less  does  it  profess  to 
be  an  exhaustive  treatise.     More  extensive  reference  has  been 
made  in  the  text  to  decided  cases  and  to  the  work  of  text- 
writers  of  approved  and  generally  recognized  authority ;  but 
the  references  at  the  end  of  each  chapter  have  been  retained, 
as    a  guide  for  general  reading   and  for  assistance  in  post- 
•  graduate  work. 

Nothing  marks  more  decisively  the  advance  which  has  been 
made  in  the  scope  and  thoroughness  of  college  work  in  recent 
years  than  the  demand  for  illustrative  cases,  and  for  more 
copious  and  extensive  references  to  original  sources  of  au- 
thority. These  sources  of  information,  in  libraries  and  collec- 
tions of  state  papers,  are  becoming  each  year  more  accessible 
to  students  and  to  the  reading  public,  by  whom  they  can  be 
consulted  for  purposes  of  reference  or  comparison.  In  the 
systematic  study  of  the  subject  it  is  suggested  that  Doctor 
Francis  Wharton's  exhaustive  and  invaluable  Digest  of  the 
International  Law  of  the  United  States  be  habitually  used  in 


IV 


PREFACE   TO    THE    REVISED   EDITION 


connection  with  the  excellent  volume  of  Cases  in  International 
Law  prepared  by  the  late  Professor  Freeman  Snow  of  Har- 
vard University.  The  standard  works  of  Philhmore,  Hall, 
Woolsey,  and  Lawrence  in  English,  Calvo  and  Pradier- 
Foder6  in  French,  and  Holtzendorff  in  German,  should  be 
frequently  consulted  for  purposes  of  comparison  and  reference. 


TABLE   OF   CONTENTS 


PAGE 

List  of  Authorities  Cited xxi 

CHAPTER  I 

DEFINITION  AND   HISTORY 

Law  in  General ;  Classification     .     .     .     .     „ I 

Municipal  Law 2 

International  Law 2 

International  and  Municipal  Law  Compared 4 

History  of  the  Science 4 

The  Oriental  Monarchies 4 

Greece 5 

Rome 5 

The  Jus  Feciale 5 

The  Decline  of  the  Empire 6 

The  Dark  Ages 7 

Effects  of  the  Revival  of  Commerce 8 

Early  Codes  of  Maritime  Law 8 

(a)  The  ' '  Judgments  of  Ole'ron  " 8 

((J)  The  "  Consolato  del  Mare" 8 

(c)  The  "Guidon  de  la  Mar" n 

Other  Codes  of  Maritime  Law n 

Development  of  International  Law 10 

The  Teutonic  Migrations II 

The  Feudal  System 12 

The  Institution  of  Chivalry 12 

The  Roman  Church , 13 

Ecumenical  Councils ;  The  Papacy ,     .  13 

The  Holy  Roman  Empire •.     .  14 

Rise  of  the  European  Monarchies 15 

The  Influence  of  Grotius 16 

The  Sources  of  International  Law 20 

The  Roman  Law 20 

The  Jus  Gentium 20 

Custom  and  Usage 23 

Treaties  and  Conventions 23 


Vi  TABLE  OF   CONTENTS 

PAGE 

The  Municipal  Law  of  States 24 

The  Judgments  of  International  Courts,  or  Boards  of  Arbitration  ...  24 
The  Decisions  of  Municipal  Courts  upon  Questions  of  International  Law  25 
The  Diplomatic  Correspondence  of  States ;  State  Papers ;  Foreign  Rela- 
tions, etc 25 

General  Histories  ;  The  Histories  of  Important  Epochs  ;  Biographies  of 

Eminent  Statesmen 26 

The  Works  of  Text  Writers 26 

International  Public  Opinion 27 

Divisions  of  International  Law 27 

Basis  of  Classification 27 

(i)  The  Natural  Law  of  Nations 28 

(2)  The  Positive  Law  of  Nations 28 

(a)  The  Customary  Law  of  Nations 29 

(/;)  The  Conventional  Law  of  Nations 29 

The  Parties  to  International  Law 29 

References 29 

General  Bibliography  of  the  Subject  of  International  Law 30 

CHAPTER  II 

STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES:    SOVEREIGNTY,  GOVERN- 
MENT, TERRITORY 

State:  Nation 31 

Citizens :  Subjects 31 

Government 32 

Kinds  of  Government 32 

Classification 33 

De  Facto  and  De  Jure  Governments 34 

Sovereign  States — The  Essential  Attributes  of  Sovereignty 34 

Sovereign  States 34 

The  Essential  Attributes  of  a  Sovereign  State    .     .     .     .    , 35 

Sovereignty 35 

Independence 3^ 

Equality 36 

Dependent  States  :  Confederations 37 

Dependent  States 37 

Confederations 37 

Rule  for  Determining  the  Strength  of  a  Confederation  or  Union    ...  38 

Protectorates 38 

Sovereign  Powers — Nature  and  Classification 39 

Extent  of  Sovereignty 39 

Classification  of  Sovereign  Powers 40 

(a)  The  Legislative  Department .40 

(/>)  The  Executive  Department .  40 

(c)  The  Judicial  Department 41 


TABLE    OF   CONTENTS  vH 

PAGE 

Exclusive  Jurisdiction,  where  Exercised 41 

Acquisition  and  Loss  of  Sovereignty 41 

Recognition  of  Sovereignty 42 

Right  of  a  State  to  Change  its  Constitution  and  Form  of  Government     .  43 

Territory :  Boundaries 44 

Territory 44 


Boundaries. 


44 


What  Constitutes  the  Territory  of  a  State 44 

Navigable  Rivers 46 

Rivers  as  Boundaries 46 

The  Navigation  of  Boundary  Rivers 48 

How  Regulated 48 

Case  of  the  Danube 48 

Case  of  the  Mississippi 50 

Case  of  the  St.  Lawrence 52 

The  Marine  League :  The  Three-Mile  Limit 54 

Jurisdiction  over  a  Portion  of  Coast  Sea 54 

Case  of  the  Franconia 56 

The  High  Seas jy 

Extent  and  Use gy 


Claims  to  Exclusive  Dominion 


57 


Jurisdiction  over  Closed  Seas 58 

Rights  of  Ownership  and  Jurisdiction  in  the  Case  of  Straits  :   Innocent 

Passage 5g 

The  Danish  Sound  Dues 60 

Fishery  in  the  High  Seas 60 

Coast  Fisheries 61 

Piracy 61 

Ship  Canals 62 

The  Panama  and  Nicaragua  Canals 63 

The  Suez  Canal 63 

Submarine  Telegraph  Cables 64 

Acquisition  of  Territory 66 

(a)   By  Occupation 66 

{b)   By  Accretion 66 

\c)  By  Treaty 66 

{d)  By  Conquest,  or  by  Conquest  Completed  by  a  Treaty  of  Peace   .  67 

Servitudes 68 

Origin  and  Application  of  the  Term 68 

How  Created  and  Terminated 68 

Examples  of  Servitude 69 

Extra-Territorial  Jurisdiction  of  a  State 69 

Nature  and  Extent 6g 

Merchant  Vessels  on  the  High  Seas 70 

Merchant  Vessels  in  Foreign  Ports 71 


Wildenhus  Case 


72 


Cases  of  the  Sally  and  the  Newton .     ,     .     .     , 73 


viii  TABLE   OF   CONTENTS 

PAGB 

The  Principle  of  Exterritoriality 74 

Definition ;  Application 74 

(i)  To  Ships-of-War  in  Foreign  Ports 74 

Extent  of  the  Privilege 75 

Exemption  from  Process 7^ 

Case  of  the  Sitka 77 

Case  of  the  Maine 77 

Case  of  the  Baltimore 8o 

Case  of  the  Constitution 8 1 

Asylum  on  Public  Armed  Vessels 82 

Oflfences  Committed  on  Shore 82 

(2)  Passage  of  Troops  through  the  Territory  of  a  Foreign  State      ...  83 

(3)  To  the  Person  of  a    Sovereign,  his   Retinue   and  Attendants,  while 

Passing  Through  or  Sojourning  in  Foreign  Territory 85 

To  Ambassadors  and  Public  Ministers 87 

To  Consuls  and  to  Foreign  Residents  in  Certain  Eastern  Countries    .     .  S8 

Exterritoriality ;  Application  of  the  Principle  to  Things 88 

References 89 

CHAPTER  III 

PERFECT   AND  IMPERFECT   RIGHTS— COMITY— CEREMONIAL 

Perfect  Rights 9^ 

Imperfect  Rights 92 

Perfect  Rights 92 

Classification 92 

The  Right  of  Self-Preservation 93 

The  Right  of  Reputation 94 

The  Enforcement  of  Treaty  Stipulations 94 

The  Duty  of  a  State  to  Protect  its  Citizens  or  Subjects 95 

Measure  of  Reparation 96 

Limitations  upon  the  Duty  of  a  State  to  Afford  Extra-Territorial  Protection  96 

The  Right  of  Interference 98 

The  Duty  of  Non-interference 99 

In  Self-Defence 99 

Marauding  Expeditions 100 

In  Accordance  with  Treaty  Stipulations 102 

To  Assist  a  State  in  Suppressing  an  Insurrection  or  Rebellion  ....  102 
Inter\'ention  in  Behalf  of  an  Oppressed  Population  and  Against  the  Gov- 
ernment of  a  State 103 

Interference  in  Behalf  of  the  Balance  of  Power 104 

De  Martens's  Statement  of  the  Principle  of  the  Balance  of  Power  .     .     .  106 

The  Primacy  of  the  Great  Powers ;  the  Concert  of  Europe 108 

Spheres  of  Influence 109 

The  Monroe  Doctrine no 

Case  of  Yucatan II3 

The  French  Occupation  of  Mexico 114 

The  Venezuelan  Boundary 115 


TABLE  OF    CONTENTS  ix 

PAGE 

Imperfect  Rights ii6 

Nature  and  Character ii6 

(a)  The  Duty  of  Humanity 117 

{d)  The  Right  of  Asylum 118 

Case  of  Political  Refugees 119 

Case  of  Shipwrecked  Sailors 120 

Case  of  the  Creole 120 

Case  of  the  Maria  Luz 121 

(c)  The  Duty  of  Comity 122 

{a)  The  Duty  of  Intercourse 122 

The  Duty  of  Mutual  Respect — Military  and  Maritime  Ceremonial    ,     .     .     .124 

Nature  and  Origin  of  the  Practice 124 

Present  Practice 126 

Maritime  Ceremonial 128 

Ceremonial  on  the  High  Seas 128 

Ceremonial  in  Foreign  Ports;  Salutes 129 

International  Agreement  as  to  Salutes 129 

Visits  of  Ceremony 130 

Ceremonial  on  Land 132 

Observance  of  National  Anniversaries 133 

References 134 


CHAPTER   IV 

NATIONAL    CHARACTER  :    CITIZENSHIP,   NATURALIZATION,    EXPATRIA- 
TION, DOMICILE 

Citizens  ;  Subjects I35 

Extra-Territorial  Privileges ' 136 

Citizenship  and  Domicile 136 

National  Character  and  Domicile,  How  Determined 137 

Classification  of  Citizens 138 

Naturalization 139 

Collective  Naturalization 140 

Consequences  of  Naturalization 141 

Naturalization  Treaties 142 

Naturalization  Treaties  of  the  United  States I43 

Expatriation I43 

(i)  Heinrich's  Case I47 

(2)  Case  of  Martin  Koszta 148 

Largomarsini's  Case 150 

Case  of  Ungar 151 

Aliens  and  Domicile 151 

Aliens ^51 

Treatment  of  Aliens 153 

Domicile 156 

Nature  of  the  Relation 156 


X  TABLE   OF   CONTENTS 

PAGB 

Definition  of  Domicile ^57 

Distinction  between  Citizenship  and  Domicile I57 

Rules  of  Domicile ^58 

Kinds  of  Domicile 1^2 

(i)  Domicile  of  Origin ^°2 

(2)  Domicile  of  Choice 163 

(3)  Domicile  by  Operation  of  Law 163 

Passports ^^3 

Issue  of  Passports  in  the  United  States 164 

References ^"5 


CHAPTER  V 

EXTRADITION 

The  Right  of  Criminal  Jurisdiction 166 

Duty  of  a  State  as  to  Crimes  Committed  Abroad 166 

Surrender  by  Comity  and  Treaty 167 

Difference  of  View  as  to  Criminal  Jurisdiction 168 

The  Cutting  Case .  170 

Extradition— the  Term I73 

Methods  of  Extradition I74 

Extraditable  OflTences I74 

Request  for  Extradition,  by  Whom  Made I74 

Conditions  of  Extradition 175 

Extradition  Treaties  of  the  United  States i77 

Interstate  Extradition 178 

References 180 

CHAPTER  VI 

PRIVATE   INTERNATIONAL   LAW:  THE   CONFLICT   OF   LAWS 

Relations  of  States  and  Individuals  at  International  Law 181 

Private  International  Law 181 

The  Practice  Based  on  Comity  or  Consent 182 

Origin  of  the  Practice 182 

Subjects  Treated  of  in  Private  International  Law 185 

Limitations  upon  the  Practice  of  Private  International  Law 185 

Effect  of  Foreign  Judgments 187 

Condition  of  Reciprocity 187 

Foreign  Judgments,  why  Produced  before  the  Courts  of  a  State 188 

Conditions  under  which  they  are  Given  Effect 188 

Practice  of  States  in  the  Matter  of  Foreign  Judgments 188 

References , 189 


TABLE  OF  CONTENTS  XI 


CHAPTER  VII 

THE    RIGHT  OF    LEGATION  :    AMBASSADORS,   PUBLIC    MINISTERS,   CON- 
SULS, CONSULAR  JURISDICTION 

PAGR 

Origin  of  the  Right IQO 

The  Right  of  Legation IQI 

Classification  of  Diplomatic  Agents I93 

Rank  of  Ambassadors ^94 

Titles  of  Ambassadors 195 

Manner  of  Sending  and  Receiving  Ambassadors 195 

Reception  of  Ambassadors 19^ 

Duties  of  Ambassadors I97 

Diplomatic  Language I97 

The  Functions  of  Ambassadors,  how  Suspended  and  Terminated  .      .     .  198 

The  Privileges  and  Immunities  of  Ambassadors 199 

The  Principle  or  Fiction  of  Exterritoriality 200 

Immunity  from  Criminal  Jurisdiction 202 

Immunity  from  Civil  Jurisdiction 205 

Immunity  of  an  Ambassador's  Hotel 206 

Cases  Against  Public  Ministers,  where  Triable 207 

Immunity  of  Public  Ministers  in  States  other  than  Those  to  which  They 

are  Accredited 208 

Privilege  of  Religious  Worship 208 

Exemption  from  Customs  Dues,  etc 209 

Legationary  Asylum 209 

Military  and  Naval  Attaches 210 

Consuls:  Consular  Jurisdiction 211 

History  of  the  Consular  Function 211 

Classification  of  Consuls 213 

By  Whom  Appointed ,     .     .     .     .  213 

Manner  of  Appointment  in  the  United  States 214 

The  Duties  of  Consuls 215 

Privileges  of  Consuls 216 

Consular  Jurisdiction 218 

References 222 

CHAPTER  VIII 

TREATIES  AND  CONVENTIONS:  EXECUTION,  RATIFICATION,  INTERPRE- 
TATION 

^  Power  of  a  State  to  Make  Contracts  and  Agreements 223 

Purpose  of  Treaties 223 

The  Right  of  Making  Treaties 224 

Power  of  a  State  to  Enter  into  Contracts  with  Individuals  and  Corporations  .  224 

^ The  Treaty-Making  Power 226 

Nature  and  Extent 227 


N 


xii  TABLE   OF    CONTENTS 

PAGE 

Conditions  Essential  to  the  Validity  of  Treaties 227 

(a)  Power  of  the  Contracting  Parties 227 

{i>)  Consent  of  the  Contracting  Parties 228 

(c)   Possibility  of  Execution 228 

Binding  Force  of  Treaties 229 

Manner  of  Negotiating  Treaties 229 

Congresses  and  Conferences 230 

Preparation  and  Execution 232 

Language  Used  in  the  Preparation  of  Treaties 233 

Form  and  Signature 234 

Ratification  of  Treaties 234 

Accession  of  Other  States 235 

Termination  of  Treaties 236 

Effect  of  War  on  Treaties 239 

Classification  of  Treaties 240 

(a)  Transitory  Agreements  or  Conventions 240 

{d)  Permanent  Treaties 240 

Objects  of  Treaties 241 

Treaties  of  Alliance 241 

Treaties  of  Guarantee 243 

Reciprocity  Treaties 244 

Rules  for  the  Interpretation  of  Treaties 245 

Protocol 248 

Recez 248 

Separate  Articles 248 

The  Most-Favored-Nation  Clause 248 

References 249 

CHAPTER   IX 

THE  CONFLICT  OF  INTERNATIONAL  RIGHTS:  THE  ADJUSTMENT  OF 
DISPUTES,  MEDIATION,  ARBITRATION,  RETORSION,  REPRISALS, 
PACIFIC    BLOCKADE 

Procedure  in  Cases  of  Conflict 250 

Methods  of  Adjustment 250 

The  Amicable  Adjustment  of  Disputes 250 

Procedure 252 

Duty  of  Moderation 253 

Amicable  Measures  of  Redress 255 

Mediation 255 

Arbitration 255 

Mediation  and  Arbitration  Compared 257 

Arbitration  Convention  of  the  International  Peace  Conference  at  The  Hague  258 

Purpose  of  the  Conference 258 

Good  Offices  and  Mediation 259 

The  International  Commission  of  Inquiry 259 


TABLE   OF   CONTENTS  xiii 

PAGE 

Permanent  Court  of  Arbitration 260 

How  Constituted 260 

Procedure 261 

Decision 261 

Review  of  the  Judgment 262 

Reservation  of  the  United  States 262 

Measures  of  Redress  Involving  the  Use  of  Force,  but  Falling  Short  of  War    .  263 

When  Resorted  to 263 

Retorsion 263 

Reprisals 264 

Embargo 266 

Pacific  Blockade 267 

References 269 

CHAPTER  X 

WAR:    DECLARATION,  EFFECTS,  THE   RULES  OF  WAR,  MARITIME  WAR 

The  Right  of  Redress 271 

Rightfulness  of  War 272 

Causes  of  War 272 

Responsibility  for  a  Resort  to  War 273 

Moral  Considerations  Involved 273 

Classification  of  Wars 274 

The  Belligerent  Parties 275 

Neutrals  :  the  Status  of  Neutrality 276 

Recognition  of  Belligerency  in  Internal  Wars 277 

Recognition  of  Independence 278 

The  Right  to  Declare  War,  or  to  Initiate  Hostilities,  in  Whom  Vested      .     ,  279 

Formal  Declaration  of  War 280 

Official  Notification  of  an  Intended  Resort  to  War 281 

Effects  of  a  State  of  War 282 

The  Property  of  Enemy's  Subjects 283 

Effect  of  War  upon  Treaties  of  Alliance,  Guarantee,  and  Subsidy    ....  285 

The  Laws  of  War 286 

Character  and  Tendency  of  the  Laws  of  War 286 

The  Forces  Employed 288 

Extent  of  the  Right  to  Use  Force 288 

Status  of  Hostility 288 

Forces  Employed  on  Land 288 

Employment  of  Individuals  of  Semi-Civilized  Races 291 

Guerillas 292 

Forces  that  May  Not  be  Used  in  War 292 

Wars  with  Savages 293 

Forces  Employed  at  Sea 293 


xiv  TABLE  OF  CONTENTS 

PAGB 

Methods  of  Carrying  on  War 295 

General  Restrictions 295 

Kule  of  Good  Faith  ;  Use  of  Deceit 296 

Use  of  the  Enemy's  Uniform  and  Flag 296 

Giving  and   Receiving  Quarter,  and  Treatment  of  Individuals  of  the 

Enemy;  Forbidden  Practices 297 

Instruments  that  May  be  Employed 298 

Instruments  of  War 298 

Balloons 299 

Torpedoes 299 

Torpedoes  and  Mines  in  Land  Operations 300 

EflFect  of  Modern  Inventions,  and  of  Improved  Methods  of  Attack  and 

Defence 30i 

The  Attack  of  Places 30i 

Duty  of  a  Commanding  Officer  of  a  Besieged  Place  in  the  Matter  of  Sur- 
render  303 

Devastation 304 

Usages  of  War  at  Sea 305 

The  Public  and  Private  Property  of  the  Enemy 306 

Treatment  of  Property  on  Land 3°^ 

Contributions 3io 

Captured  Property  on  Land ;  Booty 310 

Combatants  and  Non-Combatants 3^2 

Treatment  of  Non-Combatants  in  the  Theatre  of  War 3^2 

Prisoners  of  War 3I3 

Treatment  of  Prisoners 3^4 

Internment  of  Prisoners  in  Neutral  Territory 3I5 

Exchange  of  Prisoners 3i6 

Cartel  Ships 3^7 

Ransom 3^7 

Paroles 3^7 

Crimes  and  Offences  Against  the  Laws  of  War 318 

Nature  and  Character 3i8 

Military  Jurisdiction 320 

Spies 321 

Guerillas 322 

Pillaging 323 

Crimes  of  Violence 323 

Collective  Responsibility  of  Communities  for  Acts  of  Individuals  .  .  .  324 
Retaliation 325 

Military  Occupation 327 

Temporary  Occupation 327 

History  of  the  Different  Views  of  Occupation 327 

Difference  of  Opinion  as  to  the  Meaning  of  the  Term  Occupation.     .     .  328 

Opposing  Views 329 

Present  View  of  Occupation 33° 

Rights  of  Occupation 33^ 

Martial  Law 333 


TABLE    OF   CONTENTS  XV 

PAGB 

Indefinite  Occupation 335 

Permanent  Occupation 335 

The  Intercourse  of  Belligerents  in  War 336 

Necessity  and  Sanction 336 

Flags  of  Truce 337 

Safe- Conducts  and  Safeguards 337 

Licenses  to  Trade 338 

Cartels  and  Capitulations 339 

The  Termination  of  War 339 

Truce  and  Peace 339 

What  May  be  Done  during  a  Special  Truce 340 

Treaties  of  Peace 342 

Treaties  of  Peace,  when  Binding 343 

Effects  of  Treaties  of  Peace 343 

Treatment  of  Occupied  Territory 344 

The  Rule  of  Uti  Possidetis 344 

Effects  of  Conquest  or  Cession  upon  the  Property  and  Rights  of  Private  Indi- 
viduals   345 

Allegiance  of  the  Population  of  the  Conquered  or  Ceded  Territory  ....  346 

EflFects  of  Conquest  or  Cession  upon  Municipal  Laws 348 

Responsibility  of  a  State  for  Injury  or  Damage  to  Private  Property  ....  350 

Responsibility  of  a  State  for  Injuries  Inflicted  during  Internal  Wars     .     .     .  353 

References 354 


CHAPTER   XI 

MARITIME  capture:   PRIZE:  THE  JURISDICTION   AND   PROCEDURE  OF 

PRIZE-COURTS 

Tendency  of  the  Rules  of  Maritime  War 357 

The  Right  of  Maritime  Capture 358 

Position  of  the  United  States 359 

Forces  Employed  in  Maritime  War 360 

Captures,  Where  Made 360 

Prize :    ...  361 

Duty  of  Captor :  Prize-Crews 362 

Crews  of  Captured  Vessels 363 

The  Ransom  of  Captured  Vessels 363 

Destruction  of  Captured  Vessels 364 

Ransom  Contracts 3^4 

Hostages 366 

Recapture  and  Postliminy 3^6 

Prize-Courts 369 

Prize-Courts  and  their  Jurisdiction 369 

The  Law  Applied  by  Prize-Courts 370 


3^yi  TABLE    OF   CONTENTS 

PAGE 

Procedure  in  Prize  Cases 37 

Right  of  Appeal  in  Prize  Cases 372 

Distribution ^'^ 

Prize-Money ^' 

Privateers -"-' 

Head-Money 373 

Rules  for  Determining  the  Nationality  of  Ships  and  Goods 373 


References 


375 


CHAPTER  XII 


neutrality:  the  neutral  relation:  rights  and  duties  of 

neutrals 

Neutrality 37^ 

Character  of  the  Neutral  Relation 376 

History  of  Neutrality 377 

Development  of  the  Neutral  Theory  among  the  Maritime  States  of  Europe 

The  Rule  of  the  "  Consolato  del  Mare  " 380 

General  Acceptance  of  the  Rule 380 

Policy  of  the  United  States 380 

The  Principle  of  Free  Ships,  Free  Goods 382 

The  Declaration  of  Paris 384 

Binding  Force  of  the  Declaration 385 

Claims  to  Exclusive  Dominion,  their  Effect  upon  the  Development  of  the 

Neutral  Theory 387 

The  Monopoly  of  Colonial  Trade 389 

The  Rule  of  1756 39° 

Development   of  the  Theory  of  Neutrality  among   the  Non  -  Maritime 

States  of  Europe 39^ 

Influence  of  England  upon  the  Development  of  the  Modern  Theory  of 

Neutrality 39^ 

General  Acceptance  of  the  Modern  Theory  in  the  Seventeenth  Century : 

its  Later  History 392 

Forms  of  Neutral  Obligation 394 

Gradations  of  Neutrality 394 

Permanent  Neutrality 394 

Armed  Neutrality 394 

Strict  Neutrality 395 

Neutral  Duty  of  a  State 395 

(i)  Enlistment  of  Troops  in  Neutral  Territory 397 

Responsibility  of  a  Neutral  State  for  the  Acts  of  its  Subjects     ....  400 

Views  of  England  and  the  United  States 401 

Continental  View  upon  the  Subject  of  Governmental  Control  of  the  Acts 

of  Individuals 403 

(2)  Fitting-out  of  Hostile  Expeditions  in  Neutral  Territory 404 

What  Constitutes  a  Hostile  Expedition — the  Intent 404 

Duty  of  Neutral  State,  How  Determined 406 


TABLE    OF   CONTENTS  XVll 

PAGB 

Augmentation  of  Force 4°? 

The  Terceira  Affair 4o8 

Case  of  the  Horsa 409 

Case  of  the  Itata 4IO 

Case  of  the  Alabama 4^1 

Later  History  of  the  Confederate  Cruisers 412 

Result  of  their  Operations 4i3 

Manner  in  which  the  Neutral  Duty  of  Great  Britain  was  Performed    .     .  414 

Neutral  Responsibility  of  Great  Britain 4^4 

The  Geneva  Arbitration 4^5 

History 4^5 

The  Treaty  of  Washington 4^6 

The  Three  Rules  for  the  Guidance  of  the  Tribunal 417 

Procedure  and  Finding 418 

Meeting  of  the  Tribunal  of  Arbitration 418 

Indirect  Claims 4^9 

Rules  of  Interpretation 4^9 

Decision 42o 

Award 420 

Results  of  the  Geneva  Arbitration 421 

Right  of  Asylum 422 

Asylum  to  Troops 422 

Asylum  to  Public  and  Private  Armed  Vessels 423 

Neutral  Rights 424 

Nature  and  Character 424 

Immunity  of  Neutral  Waters  from  Acts  of  Belligerency 425 

Immunity  of  Neutral  Territory 426 

Demand  for  Restitution,  by  Whom  Made 427 

Case  of  the  Chesapeake 427 

Case  of  the  Florida 428 

Neutral  Territory 429 

Neutrality  Laws 43^ 

Character  and  Purpose 43^ 

Neutral  Obligation  Determined  by  International,  not  Municipal,  Law  431 

English  Neutrality  Laws 432 

Neutrality  Laws  of  the  United  States 434 

Neutrality  Laws  of  Other  States 435 

The  "Droit  d'Angarie" 436 

References 437 

CHAPTER  XIII 

CONTRABAND    OF  WAR 

Restrictions  upon  Neutral  Commerce  in  Time  of  War 439 

When  and  by  Whom  Exercised :  Penalty 439 

Application  to  Individuals 44° 

Origin  of  the  Practice 44^ 


xviii  TABLE    OF   CONTENTS 

PAGE 

What  Constitutes  Contraband 442 

Field's  Rule 444 

Question  Determined  by  Prize-Courts 444 

Opinion  of  the  Supreme  Court  of  the  United  States 444 

Application  of  the  Rules 445 

Destination  Important :  How  Determined 447 

Case  of  the  Springbok 45° 

Case  of  the  Peterhoff 452 

Penalty  for  Contraband  Trade 453 

Rule  as  to  Innocent  Cargo 455 

Release  of  Neutral  Ship  upon  the  Surrender  of  Contraband  Cargo .     .     .455 

The  Doctrine  of  Continuous  Voyages 45^ 

Difference  between  the  Old  and  New  Rules 457 

Occasional  Contraband 45^ 

The  Rule  of  Pre-emption 460 

Neutral  Conveyance  of  Enemy's  Troops  and  Despatches 461 

Definition  of  Terms  Troops  and  Despatches 462 

The  Destination  Important 4^3 

Cases  of  the  Friendship  and  Greta 4^3 

Presumption  in  the  Case  of  Hostile  Despatches 464 

Despatches  of  a  Belligerent  to  its  Ministers  and  Consuls  in  Neutral  States  464 

Conveyance  of  Mails  in  the  Ordinary  Course  of  Business 464 

Case  of  the  Trent 4^5 

Conclusions 4o6 

References 4^7 

CHAPTER  XIV 
blockade:  breach  of  blockade 

Nature  of  the  Restriction 4^8 

Definition 4^8 

What  is  a  Valid  Blockade? 470 

How  Established  and  Notified 47° 

(a)  By  Proclamation 47^ 

{b)  By  Notification  or  Endorsement 47^ 

By  Proclamation  and  Notification 47 1 

Cases  of  Innocent  Entrance  and  Exit 473 

Breach  of  Blockade  :  Penalty 474 

Duration  of  the  Penalty 474 

Termination  of  Blockade 47^ 

Pacific  Blockade 477 

References •    •  47^ 

CHAPTER   XV 

THE  RIGHT   OF  SEARCH 

Nature  of  the  Right 479 

When  and  Where  Exercised ,     ,     1 479 


TABLE   OF   CONTENTS  XIX 

PAGE 

How  Exercised 480 

Duty  of  Boarding  Party 481 

Release  of  Vessel  on  Surrender  of  Contraband  Cargo 482 

Resistance  to  Search  or  Capture 483 

The  Right  of  Convoy 484 

Searches  Authorized  in  Time  of  Peace 487 

(a)  Search  to  Execute  Revenue  Laws 487 

(3)  Search  on  Suspicion  of  Piracy 488 

(c)  Search  of  Merchant  Ships  by  War  Vessels  of  the  Same  State      .     .     .488 

(d)  Right  of  Approach  to  Verify  Nationality 488 

Case  of  the  Virgitnzis 489 

The  Right  of  Visitation :  Impressment  of  Seamen 493 

The  Right  of  Visitation 493 

Impressment  of  Seamen 495 

References 497 

Appendix  A.  Professor  Francis  Lieber's  Instructions  for  the  Government  of 

Armies  of  the  United  States  in  the  Field 499 

B.  The  Geneva  Convention  for  the  Amelioration  of  the  Condition 
of  the  Sick  and  Wounded  of  Armies  in  the  Field  ....  526 

C.  The  Declaration  of  Paris 53^ 

D.  The  Declaration  of  St.  Petersburg 538 

E.  The  International  Peace  Conference  at  the  Hague 540 

F.  The  Laws  of  war  on  Land 567 

Index 583 


LIST  OF  AUTHORITIES 

CITED  IN  THE   PREPARATION   OF  THIS   WORK 


American  Archives.    6  vols.     1843-1851. 

State  Papers.     4  vols.     1789-1815. 
Amos,  Sheldon.     Political  and  Legal  Remedies  for  War.     i  vol.     1880. 

The  Science  of  Law.     i  vol.     1880. 
Annuaire  de  ITnstitut  de  Droit  International,  1 877-1 899.     17  vols. 
Azuttt,  M.  D.A.     The  Maritime  Law  of  Europe.     2  vols.     1806. 

Bancroft,  George.     History  of  the  United  States.     6  vols.     1882. 

Bar,  L.     Private  International  Law.     i  vol.     1862.     English  edition  by 

Gillespie.     1883. 
Bello.     Principios  de  Derecho  de  Gentes.     i  vol.     i860. 
Bernard,  Mountague.     The  Neutrality  of  England  during  the  American 

Civil  War.     i  vol.      1870. 
Birkhimer,  William  E.,  Lieutenant -Colonel  U.  S.  Army.     Military  Gov- 
ernment and  Martial  Law.     i  vol.     1892. 
Black.     United  States  Supreme  Court  Reports.     See  Reports. 
Black  Warrior,  Case  of  the.     (Message  of  the  President  of  the  United 

States.)     1854. 
Bliss,  Philemon.     Sovereignty,     i  vol.     1885. 
Bluntschli,/ean  Gaspard.    Le  Droit  International  Codifie.    3d  edition, 

1895.     I  vol. 
Bowen,  Herbert  Wolcott.     International  Law.     i  vol.     1896. 
Brenton,  E.  P.     The  Naval  History  of  Great  Britain.     London,  1837. 
Bulmerincq,  A.  von.     Das  Volkerrecht  oder  das  International   Recht. 

I  vol.     1889. 
Burlamaqui,  /.  /.     Natural    and    Political    Law.     7th    edition.     1859. 

I  vol. 
Bynkershoek,  Cornelius.     Questiones  Juris  Publici.     i  vol.      1737. 
Treatise  on  the  Law  of  War.     18 10. 


Xxii  LIST   OF   AUTHORITIES 

Calvo,  Carlos.    Colecclon  de  Tratados  de  Todos  de  los  Estados  de  la 
America  Latina.     6  vols.     1862. 

Droit  International,  Theorique  et  Pratique.     5th  edition.     6  vols. 
1896. 

Manuel  de  Droit  International,     i  vol.     1880. 
Clode,  Charles  M.     Military  and  Martial  Law.     i  vol.     1874. 
Cobbett,  Pitt.     Cases  in  International  Law.     2d  edition,     i  vol.     1892. 
Crabb,  George.     Historj^  of  the  English  Law.     i  vol.     1829. 
Creasy,  Sir  Edward.    First  Platform  of  International  Law.    i  vol.    1876. 
Cushing,  Caleb.     The  Treaty  of  Washington,     i  vol.     1873. 

Dahlgren,  Admiral  J.  A.,  U.  S.  Navy.      International   Law.      Boston, 

1877. 

Dallas.     United  States  Supreme  Court  Reports.     See  Reports. 

Dana,  R.  H.,Jr.     Wheaton's  International  Law.     Edition  of  1866. 

Davis,  J.  C.  Bancroft.     Digest  of   Decisions  and    Opinions  on    Inter- 
national Law.     I  vol.     1877. 

Dicey,  A.  V.     The  Law  of  Domicile,     i  vol.     1879. 

Dictionnaire  Universel  du  XIX"*  Siecle.     P.  Larousse.     16  vols.     Paris, 
1888. 

Digest  of  International  Law.     Wharton.     3  vols.     1886. 
Davis.     I  vol.     1877. 

Diplomatic  Correspondence  of  the  American   Revolution.     Wharton, 
6  vols.     1889. 

Federal   Digest.     United    States   Courts.      1789- 1886.     W,  G.   Myer 

Vols.  1-30. 
Federal  Reporter.     United  States  Courts.     1 880-1 899.     Vols.  1-92. 
Ferguson,  Jan  Helenus.     Manual  of  International  Law.     2  vols.     1884. 
Field,  David  Dudley.     Draft  Code  of  International  Law.     i  vol.     1876. 
Foreign  Relations  of  the  United  States.     Annual  Volumes,  1870-1898, 

30  vols. 

Gallaudet,  Edward  M.     International  Law.     i  vol.     1892. 

Glass,  Captain  Henry,  U.  S.  Navy.     Marine  International  Law.     i  vol. 

1885. 
Glenn,   Captain  Edwin  F.,  U.  S.  Army.     International   Law.     i   vol. 

1895. 
Gould  and  Tucker.     Notes  on  the  Revised  Statutes  of  the  United  States. 

2  vols.     1889,  1897. 
Grotius,  Hugo.     The  Rights  of  War  and  Peace.      Barbeyrac's  edition. 

I  vol.     1788. 
Guelle,  Jules.     Precis  des  Lois  de  Guerre.     2  vols.     1884. 


LIST   OF   AUTHORITIES  xxiii 

Hall,  William  Edward.    International  Law.     3d  edition,     i  vol.    1890. 
Halleck,  Henry  Wager.     International  Law.     i  vol,     1861. 
Elements  of  International  Law.     i  vol.     1866. 

International  Law.     Sir  Shepstone  Baker's  edition.     2  vols.     1878. 
This  edition  has  been  used  for  purposes  of  citation  and  reference 

throughout  the  text. 
Hautefeuille,  L.  B.     Des  Droits  et  des  Devoirs  des  Nations  Neutres. 

3  vols.     1858, 
Heffter,  A.  G.     Droit  International  de  I'Europe.      Geflfcken's  edition. 

I  vol.     1883. 
Hildreth,  Richard.     History  of  the  United  States.     6  vols.     1853. 
Holland,  T.  E.     Manual  of  Naval  Prize  Law.     i  vol.     1888. 
Hoist,  H.  von.     History  of  the  United  States.     1750-1861.     7  vols,  and 

Index.     1889. 
Holtzendorff,  Franz  voti.    Introduction  au  Droit  des  Gens,    i  vol.    1889. 
Hosack,John.     The  Rise  and  Growth  of  the  Law  of  Nations,     i  vol. 

1882. 
Howard.    United  States  Supreme  Court  Reports.     See  Reports. 

Ihne,  William.     History  of  Rome.     5  vols.     London,  187 1. 
International  Law  Digest.     Francis  Wharton.    3  vols.     1886. 

Kent,  James.     International  Law.    Volume  I.  of  Kent's  Commentaries. 

Holmes's  edition.     1884, 
KlUber,  J.  L.    Droit  des   Gens   Modernes  de  I'Europe.     2d  edition. 

I  vol.     1864. 

Laurent,  F.     Histoire  du  Droit  des  Gens.     3  vols.     1851. 
Lavaleye,  E.     La  Guerre  en  Europe  et  I'Arbitrage.     i  vol. 
Lawrence,  T.  /.     Essays  on  Modern  International   Law.      2d  edition. 
I  vol.     1885. 
International  Law.     i  vol.     1898. 
Lawrence,  W.  B.     Wheaton's  International  Law.     i  vol.     1863. 
Linde.     Das  Volkerrecht  im  Kriege.     i  vol.     1888. 
Lor imer,  fames.     The  Institutes  of  International  Law.     2  vols.     1888. 

Maine,  Case  of  the.     Report  of  the  Court  of  Inquiry,     i  vol.     1898. 
Maine,  Sir  Henry  Sumner.     Ancient  Law.     i  vol.     1865. 

Early  History  of  Institutions.     1  vol.     1874. 

International  Law.     i  vol.     1888. 

Popular  Government,     i  vol.     1885. 

Village  Communities,     i  vol.     1871. 
Manning,  William  Oke.   Commentaries  on  the  Law  of  Nations.   Amos's 

edition,     i  vol.     1875. 
Martens,  Charles  de.    Traite  Diplomatique,     i  vol.     1852. 


xxiv  LIST    OF    AUTHORITIES 

Martens,  F.  de.    Traite  de  Droit  International.     3  vols.     1887. 
Martens,  G.  F.  de.    Precis  du  Droit  des  Gens  de  I'Europe.     2  vols.    i864. 
Merrill,  George.     The  Conflict  of  Laws,     i  vol.     1886. 
Mills,  H.  E.     The  Law  of  Eminent  Domain,     i  vol.     St.  Louis,  1870. 
Moore,J.  Bassett.     The  Law  of  Extradition.     2  vols.     1891. 

Digest  of  the  Arbitrations  to  which  the  United  States  have  been  a 
Party.     6  vols.     1898. 
Morey,  William  C.     Outlines  of  the  Roman  Law.     i  vol.     1890. 
Morse,  A.  Porter.     A  Treatise  on  Citizenship,     i  vol.     1891. 

Ays,  Ernest.     Etudes  de  Droit  International,     i  vol.     1896. 
La  Guerre  Maritime,     i  vol.     1881. 

Official  Records  of  the  Union  and  Confederate  Armies.     Series  I.,  II., 

III.,  and  IV.     Series  I.    Vols.  1-50. 
Ortolan,  Joseph  Louis.     History  of  the  Roman  Law.     English  edition. 

I  vol.     1871. 
Ortolan,  Theodore.     Diplomatic  de  la  Mer.     2  vols.     1864. 
Otto.     United  States  Supreme  Court  Reports.     See  Reports. 
Owen,  Douglas.     The  Declaration  of  War.     i  vol.     1889. 

Peters.     United  States  Supreme  Court  Reports.     See  Reports. 
Phillimore,  Sir  Robert.     Commentaries  on  International  Law.     2d  edi- 
tion.    4  vols.     1873. 
Pinheiro-Ferrera.     Cours  de  Droit  Public.     2  vols.     1850. 
Pistoy e  tt  Duverdy.    Traite  des  Prises  Maritimes.     2  vols.     1859. 
Pitt-Cobbett.     Cases  in  International  Law.     2d  edition,     i  vol.     1889. 
Pomeroy,  John  Norton.     Lectures  on  International  Law.     i  vol.     1886. 
Pradier-Foderi,P.    Traite  de  Droit  International  Public.    7  vols.    1885. 

Quaritch,  Dr.     Compendium  des  Europaischen  Volkerrechtes.     i  vol- 
1889. 

Ranke,  Leopold  von.    Universal  History,     i  vol.     New  York.  1885. 
Regulations,  United  States  Army,     i  vol.     1895. 
Regulations,  United  States  Consular  Service,     i  vol.     1896. 
Regulations,  United  States  Navy,     i  vol.     1896. 
Reports,  American  and  English  : 
Admiralty,  Great  Britain, 

Acton.     Vols.  I,  2. 

Dodson.     Vols,  i,  2. 

Edwards.     Vol.  i. 

Haggard.     Vol.  i. 

Hay  and  Marriott,     i  vol. 

C.  Robinson.    Vols.  1-6. 

W.  Robinson.     Vols.  1-3.     Privy  Council,     i  vol. 


LIST    OF   AUTHORITIES  XXV 

Federal  Reporter.    Vols.  1-92. 
Supreme  Court  of  the  United  States. 
Black.     Vols.  I,  2. 
Cranch.     Vols.  1-9. 
Dallas.    Vols.  1-4. 
Davis.     Vols.  108-173. 
Howard.     Vols.  1-24. 
Otto.     Vols.  1-17. 
Peters.     Vols.  1-16. 
Wallace.     Vols.  1-23. 
Wheaton.     Vols.  1-12. 
Revised  Statutes  of  the  United  States.     2d  edition,     i  vol.     1878. 

Notes  on.    By  Gould  and  Tucker.     2  vols.     1889,1897. 
Revue  de  Droit  International.     1869-1899.     Vols.  1-30.    Brussels. 
Rhodes,  J.  F.     History  of  the  United  States.     1850-1864.     4  vols.     This 

work  is  still  in  course  of  publication. 
Risley,John  SJmckburgh.     The  Law  of  War.     i  vol.     1897. 
Rivier,  Alphonse.     Principes  du  Droit  des  Gens.     2  vols.     1896. 
Romberg,  E.     Des   Belligerants  et  des   Prisonniers  de  Guerre,     i  vol. 

1894. 
Rutherford,  Thomas.     Institutes  of  Natural  Law.     i  vol.     1754. 

Schouler,  James.     History  of  the  United  States  under  the  Constitution. 
4  vols.     1880. 

Schuyler,  Eugene.     American  Diplomacy  and  the  Furtherance  of  Com- 
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Stiow,  Freefiian.     International  Law.     2d  edition.     1898. 
Cases  in  International  Law.      i  vol.     1893. 

Spear,  Sa7nuel  T.     The  Law  of  Extradition.     2d   edition,     i  vol.     1884. 

Statutes  at  Large  of  the  United  States.     1 789-1 899.    Vols.  1-30. 

Stephen,  J.  F.     History  of  the  Criminal  Law  of  England.    3  vols.    Lon- 
don, 1883. 

Stephen,/.  K.     International  Law.     i  vol.     1884. 

Story,  Joseph.     The  Conflict  of  Laws.     8th  edition,     i  vol.     1883. 

Takahashi,  Sakuyd.      International   Law  in  the  Chino -Japanese  War. 

1  vol.     1899. 
Thiers,  Adolphe.    History  of  the  French  Revolution.     Philadelphia,  1847. 
Treaties  and  Conventions  of  the  United  States.     1 789-1 887.     i  vol. 
Tucker,  George  F.    The  Monroe  Doctrine,     i  vol.     1885. 
Twiss,  Sir  Travers.     The  Law  of  Nations.     2  vols.     1884. 

United  States  Supreme  Court  Reports.    Vols.  1-173.     1789- 1899. 
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xxvi  LIST   OF   AUTHORITIES 

Vattel,  E.  de.    The  Law  of  Nations.     London,  1797. 
Virginius,  Case  of  the.    Message  of  the  President  of  the  United  States 
1873- 

Walker,  Thomas  Alfred.    The  Science  of  International  Law.   i  vol.  1893. 
History  of  the  Law  of  Nations.     2  vols.     1900. 
Manual  of  International  Law.     i  vol.     1895, 
Wallace.     United  States  Supreme  Court  Reports.     See  Reports. 
Ward,  Robert     An  Enquiry  into  the  Foundation  and  History  of  the 

Law  of  Nations  in  Europe.     2  vols.     1795. 
Westlake,Joh7i.     The  Principles  of  International  Law.     i  vol.     1894. 
Whartoji,  Francis.     The  Conflict  of  Laws,      i  vol.     1872. 

Diplomatic  Correspondence  of  the  American  Revolution.     6  vols 

1889. 
International  Law  Digest.     3  vols.     1886. 
Commentaries  on  American  Law.     i  vol.     1884. 
Wheaton,  Henry.     United  States  Supreme  Court  Reports.    See  Reports. 
Elements  of  International  Law,     1836. 
Boyd's  edition,     i  vol.    1878. 
Dana's  edition.     1866. 
W.  B.  Lawrence's  edition.     1863. 
History  of  the  Law  of  Nations.     1845. 
Wtldvian,  Richard.     Institutes  of  International  Law.     i  vol.     1849. 
Winthrop,  William.     Digest  of  Decisions  of  the  Judge-Advocate-Gen. 

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Woolsey,  Theodore  D.    International  Law.    4th  edition.    New  York,  1889, 


THE  ELEMENTS 

OF 

INTERNATIONAL   LAW 


CHAPTER   I 

DEFINITION   AND    HISTORY 

Law  in  General;  Classification.  In  its  most  general  ac- 
ceptation, the  term  "  law  "  is  applied  to  the  rule  or  principle 
which  underlies  or  controls  a  sequence  of  events.  Used  in 
this  wide  sense,  however,  the  definition  is  too  broad,  since  the 
term  is  made  to  include  the  rules  which  control  the  forces  of 
nature  in  their  operations,  as  well  as  those  which  regulate  the 
conduct  of  men  in  the  organized  societies,  or  bodies  politic, 
which  we  call  "  states,"  and  it  is  upon  this  distinction  that  the 
first  classification  is  based.  To  the  rules,  therefore,  which  con- 
trol the  material  phenomena  of  nature,  we  give  the  name  of 
"physical"  or  "  natural  "  laws;  to  those,  on  the  other  hand, 
which  govern  the  conduct  of  men  in  organized  societies  we 
give  the  name  of  "  political  laws."  Political  laws  are  also  sub- 
ject to  classification  according  to  their  source,  their  authority 
or  scope,  and  the  parties  subject  to  their  operation  ;  those 
which  control  the  relations  of  citizens  to  the  state  and  to  each 
other  are  called  "  national  "  or  "  municipal  "  laws  ;  while  those 
which  regulate  the  intercourse  of  sovereign  states  with  each 
other  are  known  as  "  international  "  laws.  The  parties  to  the 
I 


1  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

former  are  the  citizens  or  subjects  of  a  particular  state ;  the 
parties  to  the  latter  are  sovereign  states/ 

Municipal  Law.  Municipal  law  may  therefore  be  defined 
as  comprising  those  rules  of  human  conduct  which  are  estab- 
lished or  sanctioned  by  a  state,  in  virtue  of  its  sovereign 
authority,  for  the  guidance  and  direction  of  its  citizens  or 
subjects.  The  municipal  law  of  a  state  applies,  as  will  subse- 
quently appear,  not  only  to  citizens,  properly  so  called,  but  to 
all  persons,  whatever  their  nationality,  who  come  within  its 
territorial  limits  as  travellers  or  sojourners.  As  such  persons 
are  protected  by  the  local  municipal  law,  it  is  their  duty  to 
conform  to  its  requirements  during  the  period  of  their  resi- 
dence within  its  borders.'' 

International  Law.  International  law,  or,  as  it  is  some- 
times called,  the  "  law  of  nations,"  may  therefore  be  defined  as 
that  body  of  rules  and  limitations  which  the  sovereign  states 
of  the  civilized  world  agree  to  observe  in  their  intercourse  and 
relations  with  each  other.^     The  agreement  or  consent,  which 


'  Pomeroy,  Int.  Law,  §§  47-50  ;  prudence  of  the  states  of  Christen- 

Lawrence,  Int.  Law,  §§  42-55.  dom. 

^  The  municipal  law  of  man)^,  if  '  The  term  "  international  law," 
not  most,  states  is  not  restricted  first  brought  into  general  use  by 
within  the  narrow  limits  prescribed  the  English  publicist  Bentham, 
in  the  foregoing  definition,  since  it  seems  to  have  replaced  the  older  ex- 
includes,  in  addition  to  the  statutes,  pressions  "law  of  nations,"  "  jus  in- 
or  other  enactments  of  its  law-  tergentes,"  "laws  of  war  and  peace" 
making  power,  a  large  body  of  un-  and  the  like,  which  were  used  by  the 
written,  but  none  the  less  binding,  earlier  writers  in  their  treatises  on 
provisions,  derived,  in  part  from  the  subject.  The  definitions  of  the 
customs  and  usages  rigidly  adhered  term  indicate,  on  the  whole,  a  sub- 
to  for  long  periods  of  time,  and,  in  stantial  agreement  among  authors 
part,  also,  from  maxims,  presump-  as  to  the  nature  of  international 
tions,  judicial  decisions,  and  other  law  and  the  field  of  its  application, 
authoritative  sources,  which,  by  Grotius  gives  the  following  expla- 
long  continued  acquiescence  and  nation  of  the  term:  "  As  the  laws  of 
observance,  have  acquired  the  force  each  state  respect  the  benefit  of  that 
and  sanction  of  written  laws.  To  state;  so  among  all  or  most  states 
this  class  belong  the  common  law  there  might  be,  and  in  fact  are,  some 
of  England  and  the  United  States,  laws  agreed  on  bycommon  consent, 
the  sea  laws  of  the  Middle  Ages,  which  respect  the  advantage,  not  of 
the  admiralty  law  of  the  civilized  one  body  in  particular,  but  of  all  in 
world,  and  the  usages  of  business  general."  And  this  is  what  is  called 
which  are  recognized  by  the  juris-  the  "law  of  nations,"  when  used  in 


DEFINITION   AND    HISTORY  3 

is  essential  to  the  validity  of  a  rule  of  international  law,  is 
said  to  be  express,  ox  positive,  when  it  is  embodied  in  treaties, 
or  formal  declarations  of  public  policy,  or  in  statutes  which  are 
enacted  in  support,  or  recognition  of  the  accepted  usages  of 
nations  ;  it  is  said  to  be  tacit  when  it  takes  the  form  of  con- 
formity to  the  approved  practice  of  states  in  their  international 
relations. 


distinction  to  the  "law  of  nature." 
Grotius:  Rights  of  War  and  Peace, 
preliminary  discourse,  §  18,  p.  20. 
Vattel,  after  assuming  that  the 
"  law  of  nations  was  originally  no 
other  than  the  law  of  nature  ap- 
plied to  nations"  (a  common  mis- 
conception of  the  time  in  which  he 
wrote),  declares  that  "  we  call  that 
the  necessary  law  of  nations  which 
consists  in  the  application  of  the 
law  of  nature  to  nations.  It  is 
necessary,  because  nations  are  ab- 
solutely bound  to  observe  it.  This 
lawcontainsthe  precepts  prescribed 
by  the  law  of  nature  to  states,  on 
whom  that  law  is  not  less  obliga- 
tory than  on  individuals, since  states 
are  composed  of  men,  their  resolu- 
tions are  taken  by  men,  and  the  law 
of  nature  is  binding  on  all  men, 
under  whatever  relation  they  act." 
Vattel,  prelim,  chap.  §  7. 

"  International  law,  as  under- 
stood among  civilized  nations,"  is 
defined  by  Wheaton  "  as  consisting 
of  those  rules  of  conduct  which  rea- 
son deduces,  as  consonant  to  jus- 
tice, from  the  nature  of  the  society 
existing  among  independent  na- 
tions; with  such  definitions  and 
modifications  as  may  be  established 
by  general  consent."  (Elements  of 
International  Law,  §  14.)  It  is  de- 
fined by  Woolsey  as  "  the  aggre- 
gate of  the  rules  which  Christian 
states  acknowledge  as  obligatory 
in  their  relations  to  each  other,  and 
to  each  other's  subjects."  (Wool- 
sey, §  5.)  Pomeroy,  who  regards  it 
as  a  system  of  international  moral- 


ity, defines  it  as  consisting  "of 
those  rules  founded  upon  justice 
and  equity,  and  deduced  by  right 
reason,  according  to  which  inde- 
pendent states  are  accustomed  to 
regulate  their  mutual  intercourse, 
and  to  which  they  conform  their 
mutual  relations."  (Pomeroy,  Int. 
Law,  §291.)  Phillimore,  one  of  the 
ablest  English  writers  on  the  sub- 
ject of  international  law,  gives  the 
follovvingdefinition:"From  the  nat- 
ure of  states,  as  from  the  nature  of 
individuals,  certain  rights  and  obli- 
gations towards  each  other  neces- 
sarily spring  ;  these  are  defined  and 
governed  by  certain  laws.  These 
are  the  laws  which  form  the  bond  of 
justice  between  nations  —  qj(ae  so- 
cietatis  hu)}ia}iae  vinculnin  coititient 
— and  which  are  the  subject  of  in- 
ternational jurisprudence  and  the 
science  of  the  international  lawyer." 
I  Phillimore,  Int.  Law,  chap.  i.  §§ 
8,  9.  For  other  definitions,  see  I 
Halleck,  chap.  ii.  §  i  ;  Westlake, 
p. I,  chap. vi.  pars.  1-9;  Walker, p.44; 
Ibid.  Manual,  chap.  i.  §  i ;  Man- 
ning, Law  of  Nations,  p.  2  ;  Wild- 
man,  Institutes,  pp.  1-3;  Creasy,  §  i ; 
Snow,  Int.  Law,  p.  17;  Lord  Cole- 
ridge, in  Reg.  vs.  Keyn,  2  Exch.  Div. 
63,153;  Maine,  Int.  Law,  pp.  13- 
25  ;  Bluntschli,  p.  55  ;  Klliber,  §  i  ; 
I  De  Martens,  §  4.  For  a  criticism 
of  the  various  definitions  of  the 
term,  see  I  Pradier-Fodere,  pp.  2- 
16 ;  HefTter,  §  i  ;  Lawrence,  Int.  Law, 
§  I  ;  Westlake,  p.  i  ;  Hall,  int.  chap, 
p.  i;  Revue  de  Droit  Internat'l,  vol. 
xvii.  p.  517  ;  Holtzendorflf,  §§  1-20. 


4  THE   ELEMENTS   OF  INTERNATIONAL   LAW 

International  and  Municipal  Law  Compared.  The  es- 
sential difference  between  the  two  systems  of  law  will  be 
found  to  consist  in  the  extent  and  character  of  the  binding 
force  of  each.  The  sovereign  authority  of  a  state  sanctions 
its  municipal  laws  and,  within  its  territorial  limits,  enforces 
obedience  to  their  provisions.  As  sovereign  states  acknowl- 
edge no  common  superior,  it  is  obvious  that  there  is  no  au- 
thority above  a  state,  or  outside  of  it,  which  can  effectively 
coerce  it  into  obedience  to  the  provisions  of  international  law. 
An  individual  who  suffers  an  injury,  or  whose  personal  or  prop- 
erty rights  are  invaded,  seeks  and  obtains  redress  in  the  courts 
of  his  country,  which  are  authorized  to  hear  and  decide  his 
case,  and  are  given  power  to  enforce  their  judgments  and  de- 
crees. If,  on  the  other  hand,  a  nation  be  injured  or  invaded 
by  another,  or  have  a  cause  of  difference  with  a  foreign  state, 
it  cannot  appeal  to  an  international  tribunal  of  any  kind  to 
remedy  its  wrong  or  to  adjust  its  difference,  but  must  seek 
redress  by  remonstrance  or  negotiation,  or,  as  a  last  resort,  by 
war,  when  all  peaceable  methods  of  adjustment  have  failed.' 

History  of  the  Science 

The  Oriental  Monarchies.  International  law  can  hardly 
be  said  to  have  existed  in  ancient  times.  The  absolute  and 
crudely  organized  Eastern  monarchies- were  intolerant  of  the 
very  existence  of  neighboring  nations,  and  lived  in  a  state  of 
constant  warfare  with  them.  Of  distant  nations  they  knew 
nothing,  and  as  there  must  be  communication  or  intercourse 
of  some  kind  between  states  in  order  that  the  rules  may  be 
deduced  which  govern  their  relations  with  each  other,  it  was 
impossible  that  a  science  resembling  international  law  could 
have  existed  among  them.* 

'  I  Halleck,  pp.  48-50;  Risley,  §3;  on  a  great  scale  and  to   increase 

Woolsey,  §§  2-5  ;  I  Phillimore,  chap,  the   area   from   which  they  could 

i. introduction;  Wildman, pp.  29-32;  talvc  their  taxes;  but,  nevertheless, 

Ortolan,  liv.  i.  chap.  iii. ;  Smith,  Ele-  no  one  could  say  how  much  war 

mentary  Law,  §  i.  they  extinguished  by  the  prohibi- 

'  The  object  of  their  founders  tion,  which  they  undoubtedly  car- 
was  to    gratify   ambitious   display  ried  out,  of  hostilities  among  the 


DEFINITION   AND   HISTORY  5 

Greece.  The  Greeks  acknowledged  the  independent  ex- 
istence of  other  states,  both  within  and  without  the  Hel- 
lenic peninsula.  They  had  an  extensive  commercial  inter- 
course with  them  and,  upon  important  occasions,  sent  and 
received  ambassadors  and  diplomatic  agents.  The  pressure 
of  circumstances  obliged  them,  at  times,  to  enter  into  offen- 
sive and  defensive  alliances  with  each  other,  and  some  of 
their  later  confederacies  were  highly  organized  and  possessed 
many  elements  of  permanency.  All  foreigners,  however,  were 
known  to  them  as  barbarians ;  their  customs  in  war  were  ex- 
tremely cruel,  and  breaches  of  faith  were  too  common  to  favor 
the  growth  of  a  science  which  depends,  to  a  higher  degree 
than'any  other,  upon  the  sacred  observance  of  agreements  and 
promises.' 

Rome.  The  Romans  differed  from  the  Greeks  in  that 
their  intercourse  with  foreign  nations  was  so  great  in  amount, 
and  so  diversified  in  character,  as  to  enable  a  crude  system  of 
rules  to  be  deduced  from  their  international  experience,  by 
which  they  conceived  that  their  reciprocal  intercourse  with 
other  states  was  regulated  and  controlled.  In  discussing  the 
status  of  international  law  among  the  Romans,  however,  it  is 
necessary  to  distinguish  between  the  well-known  foreign  policy 
of  the  republic,  which  aimed  at  and  finally  secured  universal 
dominion,  and  the  crude  and  imperfect  system,  known  as  the 
jus  fcciale,  which,  during  the  greater  part  of  the  republican 
period,  was  believed  to  control  their  strictly  external  relations. 

The  Jus  Feciale.  The  jus  feciale  was,  in  substance,  a 
set  of  rules  which  determined  the  duties  of  the  members  of 

various  subdivisions  of  their  sub-     6i ;  Bluntschli,  int.  pp.  1 1,  12  ;  Klii- 
jects.    Maine,  Int.  Law,  p.  10;  Ibid.     ber,§io;  Risley,  pp.  11-13;  I  Hal 


Early  History  of  Institutions,  pp 
371-400;  HoltzendorfT,  §§  40-48 
Kliiber,  §  10;  Bluntschli,  int.  pp 
11-13;    I  Azuni,  art.  ii.  pp.  24-36 


leek,  ch.  i.  §  3  ;  I  Phillimore,  int.  p. 
45  ;  Manning,  p.  9  ;  Woolsey,  §  8 ;  I 
Ward's  Inquiry,  pp.  171-200;  I  De 
Martens,  §  10;    Hosack,  pp.  1-15; 

Hosack,  pp.  1-7;  Revue  de  Droit  In-      Lawrence,   Int.  Law,  §21;    Revue 

ternational,  vol.  xvii.  pp.  280-281.  de  Droit  Int.,  vol.  xvii.  p.  281. 
1  Westlake,  Int.  Law,  pp.  17-19;      Foreign   Relations   of  the  United 

HoltzendorfT,  §§  49-54;   Levi,  p.  9,     States,  1877,  p.  289. 

Walker,  Science  of  Int.  Law,  pp.  58-^ 


6       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

the  Fecial  College,  whose  principal  function  it  was  to  give 
effect  to  formal  declarations  of  war  which  had  received  the 
sanction  of  the  popular  assembly  having  authority,  under 
the  constitution  of  the  republic,  to  make  them.  They  also 
gave  advice  upon  questions  respecting  war  and  peace,  acted 
as  heralds  and  ambassadors,  and  received  and  entertained  the 
envoys  and  ministers  of  foreign  states.'  The  college  ceased  to 
exist  in  the  early  part  of  the  imperial  period;  the  powers  and 
duties  of  its  members  being  merged  in  the  general  authority 
of  the  emperor.'^  It  is  proper  to  observe,  also,  that  the  policy 
of  constant  territorial  expansion  which  was  pursued  by  the 
Romans  from  the  earliest  times,  and  was  steadfastly  adhered 
to  until  the  empire  included  within  its  borders  the  entire  civil- 
ized world,  interposed  a  barrier  to  the  establishment  of  states 
upon  independent  foundations,  and  thus  operated  to  prevent 
the  development  among  them  of  a  system  of  international 
law  in  the  modern  acceptation  of  the  term.^ 

The  Decline  of  the  Empire.  It  has  been  seen  that  the 
gradual  subjection  of  the  civilized  world  to  the  dominion  of 
Rome,  while  it  arrested  the  development  of  international  law, 
operated,  so  long  as  it  existed,  to  render  such  a  system  of  law 
unnecessary.  The  obliteration  of  independent  states,  by  their 
gradual  absorption  in  the  empire,  put  an  end  to  all  interstate 
intercourse  and  terminated  those  mutual  relations  which  it  is 
the  function  of  international  law  to  regulate ;  while  the  main- 
tenance of  peace  within  its  borders  made  war  impossible, 
save  with  the  barbarous  races  to  the  north  and  east,  who  had 
come  to  be  regarded  by  the  imperial  government  as  its.  con- 
stant enemies.     This  state  of  affairs  culminated  in  the  asfe  of 


'  Holtzendorflf,  §  60;  Hosack,  pp.  eroy,  §  12;  I  Phillimore,  int.  pp.  45, 

16-20.  46  ;  Maine,  Int.  Law,  p.  13 ;  Levi,  pp. 

'^  There  are  believed  to  be  no  in-  lo-ii:  Westlake,  pp.  18-23;  Blunt- 
stances  on  record  of  the  perform-  schli,  int.  pp.  12,  13;  Holtzendorfif, 
ance  of  fecial  duties  subsequent  to  §§  57-64;  I  De  Martens,  §  10;  Klii- 
the  reign  of  the  Emperor  Tiberius,  ber,  §  10 ;  Risley,  pp.  13-1 5  ;  Ward's 

'Manning,  pp.  9-12  ;  Heffter,§6;  Inquiry,  pp.  171-200;    Hosack,  pp. 

Walker,  Science,  pp.  61-63 ;  I  Hal-  16-22;    Revue   de    Droit   Interna- 

leck,ch.i.§§3,4;  Woolsey,§8;  Pom-  tional,  vol.  xvii.  p.  278. 


DEFINITION    AND    HISTORY  7 

Augustus,  which  witnessed  the  establishment  of  the  Roman 
peace,  and  the  extension  of  Roman  territory  to  a  series  of 
strong  natural  boundaries,  beyond  which  the  imperial  power 
was  feared  and  respected  and  within  which  its  authority  was 
supreme. 

As  the  empire  grew  steadily  weaker,  it  became  each  year  less 
able  to  maintain  internal  order  and  to  resist  the  inroads  of  the 
barbarous  tribes  which  were  a  constantly  growing  menace  to  its 
territorial  integrity  until,  towards  the  close  of  the  fifth  century 
of  the  Christian  era,  and  as  a  consequence  of  their  repeated 
incursions,  the  Romans  ceased  to  be  the  dominant  race  in' the 
West,  giving  place  to  the  various  Germanic  nations  which  had 
established  themselves  within  its  former  boundaries.' 

The  Dark  Ages.  From  the  downfall  of  the  Western  Ro- 
man Empire  until  the  close  of  the  Dark  Ages  a  slow  but  grad- 
ual development  of  the  science  can  be  traced,  chiefly  in  the 
history  of  the  Mediterranean  cities,  which  maintained  more 
or  less  intimate  commercial  relations  with  each  other  during 
that  period.  Some  of  these  cities  had  survived  the  wreck  of 
the  empire,  and  had  maintained  their  corporate  existence 
during  the  inroads  of  the  Teutonic  invaders.  Others  had 
been  founded  from  time  to  time,  especially  during  the  period 
of  revival  of  civilization.  Such  of  them  as  had  endured  the 
evil  effects  of  the  feudal  system  did  so  with  extreme  difficulty, 
and  it  was  not  until  those  effects  had  in  some  degree  passed 
away  that  the  elements  of  civilization,  which  had  been  pre- 
served among  them,  began  to  increase,  and  to  exercise  an  in- 
fluence upon  the  rude  society  by  which  they  were  surrounded. 
The  first  signs  of  a  revival  began  to  appear  towards  the  close 
of  the  Dark  Ages,  and  were  manifested  in  the  marked  interest 
shown  in  the  revival  of  manufactures,  and  the  establishment 
and  extension  of  commercial  intercourse.^ 


'  Westlake,  pp.  23-29;    Hosack,  leek,  ch.  i.  §§  5,6;  I  Ward,  Inquiry, 

pp.  23-27;  Lawrence,  Int.  Law,  §  24.  pp.  211-236;  Woolsey,  §  8  ;   Maine, 

'^  Wheaton,   History,   pp.  16-23;  Int.  Law,  pp.  10,  1 1,  16,  17  ;  Walker, 

Ibid.  Elements  of  Int.  Law  (preface  Science,  pp. 63-68;  Bluntschli,p.  13; 

to  third  edition),  pp.  15,  16;  I  Hal-  Kliiber,  §  11 ;  Holtzendorff,  §§65, 79. 


8        THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Effects  of  the  Revival  of  Commerce.  Commerce,  and  es- 
pecially maritime  commerce,  cannot  long  be  carried  on  with- 
out its  participants  agreeing  upon  some  rules  for  its  protec- 
tion and  regulation.  All  ships  engaged  in  it  are  exposed  alike 
to  the  depredations  of  pirates  and  the  perils  of  the  sea.  The 
necessity  of  policing  harbors,  of  lighting  dangerous  coasts,  of 
maintaining  adequate  port  facilities,  and  of  providing  some 
means  of  enforcing  maritime  contracts,  must  also  have  re- 
ceived early  attention.  As  the  Mediterranean  cities  were 
themselves  independent,  or  were  situated  in  different  states, 
and  acknowledged  no  common  superior,  such  rules,  to  have 
been  regarded  as  obligatory,  must  have  commended  them- 
selves to  those  engaged  in  commercial  pursuits,  must  have 
existed  with  their  tacit  or  expressed  consent,  and  their  bind- 
ing force  could  have  endured  only  so  long  as  they  were  gener- 
ally regarded  as  just  and  equitable. 

Early  Codes  of  Maritime  Law.  Primitive  codes  of  mar- 
itime law,  fulfilling  most  of  these  conditions,  and  so  possess- 
ing some  of  the  characteristics  of  international  law,  are  found 
to  exist  in  the  early  sea-laws  of  the  commercial  cities  of  south- 
ern and  western  Europe.'    The  most  important  of  these  were  : 

(a.)  The  ''Judgments  of  Ole'ron."  This  was  a  body  of 
regulations  governing  the  navigation  of  the  western  seas,  and 
is  believed  to  have  been  drawn  up  in  the  eleventh  century.'' 
Its  authority  was  long  recognized  in  most  of  the  Atlantic 
ports  of  France,  and  for  this  reason  portions  of  it  were  incor- 
porated in  the  Maritime  Ordinances  of  Louis  XIV.^ 

{b.)  The  "  Coiisolato  del  Mare,''  or  "  Customs  of  the  Sea," 
was  a  more  extensive  collection  of  rules  applicable  to  the  de- 
cision of  questions  arising  in  commerce  and  navigation,  both 
in  peace  and  war.  It  also  contained  rules  defining  the  rights 
of  belligerents  and  neutrals,  as  they  were  then  sanctioned  and 
understood.  It  was  probably  drawn  up  in  the  twelfth  century, 
the  earliest  authentic  copy  having  been  published  in  Barce- 

'  I    Azuni,    Maritime    Law,  pp.         ^  Ibid, 
253-379;  Dominion  of  the  Sea,  pp.         '  Dominion  of  the  Sea,  London 
116-119.  {^T^l)>  PP-  116-119,  \2o-\f^ 


DEFINITION   AND    HISTORY  9 

lona  in  1494.'  Its  authors  are  unknown,  but  their  work  ex- 
hibits a  thorough  knowledge  of  the  Roman  maritime  law,  of 
the  early  maritime  customs  of  the  commercial  cities  of  the 
Mediterranean,  and  of  the  principles  of  contract,  as  applied  to 
trade  and  navigation.  Great  weight  was  attributed  to  the 
work  by  the  commission  to  whom  Louis  XIV.  intrusted  the 
preparation  of  his  celebrated  Maritime  Ordinances.  As  show- 
ing its  general  acceptance  among  maritime  powers,  Grotius 
speaks  of  the  "  Consolato  del  Mare  "  as  containing  the  consti- 
tutions of  France,  Spain,  Syria,  Cyprus,  the  Balearic  Isles, 
Venice,  and  Genoa.^  Its  provisions  on  the  subject  of  prize 
law,  besides  the  concurrence  of  the  states  above  named,  coin- 
cided with  all  the  treaties  relating  to  their  provisions  made 
during  several  succeeding  centuries,'  and  they  agree  at  pres- 
ent with  the  maritime  codes  of  Europe,  notwithstanding  many 
attempts  to  reverse  their  regulations.'* 

(c.)  The  "  Guidon  de  la  Mar''  This  is  a  work  of  somewhat 
less  comprehensive  character  than  the  "  Consolato  del  Mare," 
and  is  of  considerably  later  date.  It  was  drawn  up  towards  the 
close  of  the  sixteenth  century,  at  the  supposed  instance  of  the 
merchants  of  Rouen,  It  treats  principally  of  the  law  of  mar- 
itime insurance,  the  laws  of  prize,  and  contains  a  code  of  reg- 
ulations governing  the  issue  of  letters  of  marque  and  reprisal. 

Other  Codes  of  Maritime  Law.  The  "  Maritime  Law  of 
Wisbuy,'"  the  "  Customs  of  Amsterdam,"  the  "  Laws  of  Ant- 
werp," and  the  "Constitutions  of  the  Hanseatic  League"*  are 
names  applied  to  bodies  of  sea-laws  similar  to  those  already 
described,  which  were  recognized  in  the  cities  of  northwestern 
Europe,  on  the  North  and  Baltic  seas. 

These  early  systems  had  some  elements  in  common.  The 
authorship  of  none  of  them  is  fully  known.     The  most  gen- 

'  I  Halleck,  chap.  i.  §  13;  Holtzen-         ^    Manning,      Law    of     Nations 

dorff,  §§  76,  "]"]  ;  the  oldest  edition  (Amos  edition),  p.  15. 
of  the  Consolato  is  in  the  Catalan         ^  Ibid.  *  Ibid, 

dialect  and  was  printed  in  Barcelo-         '  Dominion  of  the  Sea,  pp.  174- 

na  in  i502,by  order  of  the  consuls  of  190. 

that  city,  from  ancient  manuscripts.         ^  Ibid.  pp.  190-206;  Holtzendorflf, 

Wildman,  Institutes,  p.  20,  §78. 


10      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

erally  accepted  opinion  is  that  they  were  drawn  up  by  com- 
missions of  merchants  or  lawyers  representing  different  cities, 
thus  giving  them  in  some  degree  the  character  of  commercial 
treaties.  All  of  them  contain  provisions  extracted  from  the 
earliest-known  maritime  code,  the  Rhodian  Laws,  which  were 
incorporated  at  an  early  date  into  the  general  body  of  Roman 
law,  and  were  recognized  and  sanctioned  by  the  emperors 
Tiberius  and  Hadrian.'  In  some  of  them  the  subjects  of  neu- 
trality and  neutral  rights  are  so  broadly  and  liberally  treated 
as  to  leave  but  little  room  for  improvement  in  the  codes  of 
more  recent  times.  All  of  them  evince,  on  the  part  of  their 
authors,  a  familiarity  with  the  Civil  Law,  and  each,  in  turn,  ex- 
ercised a  decided  influence  in  the  preparation  of  those  which 
followed  it.* 


Development  of  International  Law 

The  sea-laws,  however,  applied  to  but  one  phase  of  inter- 
national relations — maritime  commerce — and  some  of  them 
had  been  in  existence  several  centuries  before  the  intercourse 
of  states  on  land  had  become  sufficiently  general  to  make  it 
possible  to  deduce  any  of  its  underlying  principles,  or  even  to 
formulate  the  common  usages  of  states  in  peace  or  war.  The 
nations  of  Europe  during  the  period  between  the  fourth  and 
fifteenth  centuries  were  in  a  formative,  transition  state,  of 
which  little  detailed  history  remains.  General  causes  were  at 
work,  however,  some  of  which  tended  to  favor,  and  some  to 
retard,  the  growth  of  international  law.     Some  of  these  were : 

The  Teutonic  Migrations.  The  Germanic  peoples  who 
passed  the  Rhine  and  the  Danube  in  the  first  five  centuries  of 
the  Christian  era,  were,  in  the  main,  uncivilized  tribes,  or  na- 
tions, whose  migrations  were  due  to  the  operation  of  two  forces 
— one,  constant,  a  desire  to  seek  new  homes  in  regions  having 
a  more  genial  climate  and  a  more  fertile  soil  than  were  to  be 

'  Manning,  pp.  14-21.  Lawrence,  Int.  Law,  §§27-29  ;  Man- 

^  Hosack,    pp.    163-172;    Pome-     ning,  pp.  14-18;  Levi,  pp.  13-15. 
roy,  §  40  ;   Holtzendorff,  §§  75-78  ; 


DEFINITION   AND    HISTORY  II 

found  in  the  inhospitable  regions  in  which  they  were  lo- 
cated when  the  movement  began  ;  the  other,  casual  and  occa- 
sional, but  none  the  less  powerful,  the  irresistible  pressure  of 
ruder  and  less  civilized  neighbors  from  the  east.  Their  rulers 
were  leaders  in  war  only,  whose  title  to  command,  derived  from 
their  valor  or  military  capacity,  was  based  upon  the  loyalty  of 
their  followers,  who  accompanied  them  less  in  the  quality  of 
soldiers  than  as  companions  in  quest  of  new  habitations.  The 
conquests  which  they  effected  within  the  boundaries  of  the 
empire  resembled  more  nearly  acquisitions  of  land  by  a  people 
in  search  of  homes,  than  occupations  of  hostile  territory  as  that 
term  is  now  understood.  As  the  number  of  the  invaders  bore 
a  great  proportion  to  the  population  of  the  Roman  provinces 
which  they  occupied,  and  as  the  provincials  were  at  the  same 
time  enervated  by  long  peace,  the  expeditions  were  no  sooner 
completed  than  all  danger  of  resistance  was  at  an  end.  After 
dividing  among  themselves  such  lands  as  they  thought  proper 
to  appropriate,  the  invaders  separated  and  gradually  became 
merged,  or  amalgamated,  in  the  population  of  the  territories 
in  which  they  had  thus  established  themselves.' 

The  Feudal  System.  This  institution,  as  a  factor  in  the 
historical  development  of  modern  Europe,  was  the  remote 
rather  than  the  immediate  consequence  of  the  Teutonic  mi- 
grations which  have  already  been  explained.  The  fiefs  held, 
at  first,  in  life  tenancy,  in  time  became  hereditary  in  the  fam- 
ilies of  their  possessors,  and  the  barons,  aiming  at  complete 
political  independence,  and  but  feebly  held  in  check  by  their 
feudal  superiors,  finally  became  practically  supreme  in  their 
own  domains.  Without  their  territories  they  acknowledged, 
as  will  presently  appear,  a  qualified  allegiance  to  the  Pope  in 
spiritual  affairs,  and  there  was  a  similar  recognition,  in  some 
instances,  of  the  position  and  authority  of   the  German  em- 

'  De  Lolme,  Const,  of  England,  63-65;  Holtzendorff,  §  70 ;  I  Hal- 

pp.  148.  149;   Church,  The  begin-  leek,  pp.  4-6;   Bluntschli,  int.  pp. 

ning  of  the  Middle  Ages.  int.  pp.  15,  16;  Risley.  pp.  15-16;  Hosack, 

1-13;  Manning,  pp.  14, 18-21;  Snow,  pp.  23-36, 
1 2 ;  Walker,  Science  of  I  nt.  Law,  pp. 


12  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

peror.  Such  recognition,  however,  was  at  best  but  sHght  in 
either  case,  and  was  not  regarded  by  the  feudal  lords  as  con- 
stituting a  serious  restriction  either  upon  their  external  inde- 
pendence or  their  internal  authority.  While  the  system  last- 
ed its  effects  were,  on  the  whole,  unfavorable  to  the  growth  of 
international  law.  Europe  was  divided  into  a  large  number  of 
small  states,  or  groups  of  states,  ruled  by  dukes  and  barons, 
each  in  a  condition  of  constant  hostility  with  his  neighbors. 
Intercourse  by  land  was  always  difficult,  and  at  times  impos- 
sible ;  internal  commerce  could  not  exist,  and  the  growth  of 
towns,  as  centres  of  trade  and  manufacturing  industry,  was 
hampered  and  restricted.  War  was  the  rule,  and  peace  the 
exception  ;  the  rules  governing  the  operations  of  war  were  cruel 
and  harsh  in  the  extreme.  Quarter  was  rarely  given  ;  the  gar- 
risons of  besieged  towns  were  put  to  the  sword  ;  prisoners  of 
war  were  reduced  to  slavery  ;  and  so  great  was  the  mutual  dis- 
trust of  sovereigns  that  they  maintained  but  little  intercourse 
with  each  other,  and  obtained  such  information  as  they  de- 
sired by  questionable  means — through  agents  or  spies. 

The  system  culminated  when  the  modern  states  of  Europe 
began  to  assume  something  of  their  present  territorial  form. 
The  great  monarchies  could  only  grow  in  size  and  strength  at 
the  expense  of  the  power  and  possessions  of  the  feudal  nobles, 
and  so  soon  as  the  former  were  securely  established  the  power 
and  importance  of  the  latter  began  to  decline.' 

The  Institution  of  Chivalry.  This  came  into  existence 
during  the  feudal  period ;  it  was  in  great  part  an  outgrowth 
of  the  Crusades  and  contributed  powerfully  to  ameliorate 
some  phases  of  the  laws  of  war.  Its  code  applied  at  first  only 
to  the  conduct  of  knights  towards  each  other  ;  but,  in  so  far 
as  it  recognized  and  practised,  to  some  extent,  the  principles 
of  Christianity,  its  effects  were  soon  felt  in  the  milder  treat- 
ment of  captives  and  slaves,  and  in  the  different  and  stricter 

'  Woolsey,  §  8  ;  Walker,  Science  23-63;  Lawrence,  Int.  Law,  §§  27-. 

of  Int.  Law,   pp.  42,  43;   Holtzen-  29;  Revue  de  Droit  International, 

dorff,  §§  72.  73;  Ward,  Inquiry,  pp.  vol.  xxiii.   pp.  541-560. 
337-395 ;  Kliiber,  §11;  Hosack,  pp. 


DEFINITION   AND    HISTORY  I3 

views  which  began  to  prevail  in  the  matter  of  keeping  faith 
with  enemies  and  strangers/ 

(c.)  The  Roman  Church.  Unquestionably  the  most  power- 
ful influence  that  was  exerted  upon  the  science  of  international 
law  during  its  formative  period  was  that  of  the  Roman  Church. 
As  the  political  power  of  the  Western  Empire  decayed,  and 
finally  disappeared,  the  Church,  an  organization  having  at  once 
a  religious  and  a  secular  aspect,  became  for  a  time  the  most 
powerful  organ  of  civilization  in  that  portion  of  western  Eu- 
rope which  had  formerly  acknowledged  the  sway  of  the  Roman 
emperors.  Its  authority  was  generally  acknowledged  and  re- 
spected, and  its  ministers  and  bishops,  in  addition  to  their 
sacred  functions,  frequently  found  themselves  called  upon  to 
perform  duties  entirely  secular  in  character.  Out  of  this  state 
of  affairs  grew  the  Canon  Lazv  ;  a  code  based,  to  a  great  extent, 
upon  the  Roman  law,  but  adapted  to  the  peculiar  exigencies  of 
the  Church  and  times.  While  intended  primarily  as  a  consti- 
tution for  the  government  of  the  Church  and  the  administration 
of  its  vast  interests,  its  provisions  were  found  to  be  applicable 
to  the  decision  of  a  great  variety  of  controversies,  ranging  in 
importance  from  the  disputes  of  private  individuals  to  the  ad- 
justment of  difficulties  of  serious  international  concern.^ 

Ecumenical  Councils;  The  Papacy.  "The  assembly  of 
deputed  representatives  from  the  different  Christian  states 
gave  to  the  ecumenical  councils  the  character  and  composition 
of  a  sort  of  European  Congress.  Besides  the  settlement  of 
articles  of  faith  and  the  deposition,  or  excommunication,  of 
princes,  which  were  determined  upon  in  these  councils,"  ^  there 
were  numerous  instances  in  which  their  decisions  were  sought 
in  purely  secular  affairs.  There  were  also  cases  in  which  the 
Pope  was  made  an  arbitrator,  or  referee,  in  questions  of  inter- 

'  Holtzendorflf,  §  74 ;  Hosack,  pp.  8  ;  I  Halleck,  pp.  6,  7  ;  Levi,  pp.  1 1 

79-130;    Ward's    Inquiry,  pp.  155-  -13;    Holtzendorflf,  §§  65,66,  68; 

230;    Risley,  p.   19;  Woolsey,  §  8  ;  Manning,  pp.  12-14  ;  Lawrence,  Int. 

Manning,  pp.  11,  12.  Law,  §§  24,  25  ;  Hosack,  p.  29. 

*  Kliiber,  §  11  ;  Maine,  Int.  Law,  '  Manning,  pp.  12,  13;    Hosack, 

pp.  14-16;    Bluntschli,  int.  pp.  13-  pp.  29-60. 
15;  Risley,  pp.  15-19;  Woolsey,  § 


14  THE    ELEMENTS   OF   INTERNATIONAL   LA^Y 

national  controversy.'  The  bull  of  Pope  Alexander  VI.,  of 
May  4,  1493,  fixing  upon  the  meridian  passing  through  a  point 
one  hundred  leagues  west  of  the  Azores  as  a  boundary  be- 
tween the  colonial  possessions  of  Spain  and  Portugal,  is  an  ex- 
ample of  the  exercise  of  such  arbitral  authority  on  the  part  of 
the  pope.  By  his  subsequent  approval  of  the  treaty  of  Torde- 
sillas,this  line  was  fixed  at  the  meridian  passing  through  a  point 
370  leagues  west  of  the  most  western  point  of  the  Cape  Verde 
Islands.'  The  advantage  that  might  have  been  derived  from  the 
papal  interference  would  have  been  very  great  had  it  been  an 
authority  exercised  for  justice  instead  of  abused  for  ambition.' 
The  Holy  Roman  Empire.  It  is  a  tribute  to  the  profound 
influence  of  the  Roman  Empire  upon  the  minds  of  men  that 
the  theory  of  universal  sovereignty  should  have  so  long  sur- 
vived its  downfall,  and  that  it  should  have  been  deemed  nec- 
essary in  the  Middle  Ages  to  find  a  substitute  for  it  in  ex- 
isting institutions.  Such  a  substitute  was  found  in  the  empire 
founded  by  Charlemagne,  but  with  an  important  modification. 
The  temporal  head  of  Christendom  was  the  German  emperor; 
its  spiritual  head  was  the  Roman  pontiff  ;  but,  as  the  line  of 
division  was  not  sharply  drawn,  these  personages  often  came 
into  conflict,  and  the  international  law  of  the  Middle  Ages 
was  influenced  enormously  by  the  conflicting  claims  of  the 
pope  and  the  emperor.*     As  the  imperial  power,  at  any  time, 

'  Manning,  pp.  12,  13.     "At  the  without  any  protest  respecting  its 

Council    of     Lyons,    convened   by  validity." — Ibid. 

Gregory   X.,    in    1274,  the   inhabi-  ^  For  an  exhaustive  discussion  of 

tants  of  Ancona  having  contested  this  incident,  see   the  article  en- 

the  right  of  the  Venetians  to  levy  titled  "  La  Ligne  de  Demarcation 

tolls,  and  exercise  other  rights  of  d'Alexandre    VI.,"    by    M.    Ernest 

exclusive  dominion  in  the  Adriatic,  Nys,  in  vol.  xxvii.  of  the  Revue  de 

the  question  was  referred   to  the  Droit  International,  pp.  474-492. 

pope    and    was   discussed.     Judg-  '  Manning,  pp.  12,  13;   I  Selden, 

ment   was  given  that  the  inhabi-  De  Dominio  Maris,  chap.  xvi.  ;Leib- 

tants  of  Ancona  had  no  grounds  nitz,  Opera,  vol.  iv.  pp.  330,  331  ;  II 

for  their  complaints,  and  that  the  Ward's  inquiry,  p.  i. 

Venetians  were   possessed   of  the  *  Lawrence,  Essays  on    Modern 

sovereignty  of  the  Adriatic.     None  International    Law,  p.  149;    Holt- 

of  the  ambassadors  or  princes  pres-  zendorflf,  §§  69,  71  ;  Bluntschli,  int. 

cnt  at  the  council  objected  to  the  pp.  13-17. 
decision,  and  the  judgment  passed 


DEFINITION   AND   HISTORY  1 5 

depended  largely  upon  the  personal  influence  and  character 
of  the  emperors,  and  as  no  line  of  political  policy  was  long  ad- 
hered to  by  them,  the  papacy,  having  a  determined  and  well- 
settled  policy,  in  time  began  to  acquire  a  preponderance  even 
in  temporal  affairs. 

"The  idea  of  a  common  superior  still  lingered  among  the 
nations,  and  greatly  assisted  the  Roman  pontiffs  in  their  ef- 
forts to  obtain  a  suzerainty  over  all  temporal  sovereigns. 
For  as  the  empire  founded  by  Charlemagne  gradually  de- 
creased in  extent  till  it  scarcely  extended  beyond  the  limits 
of  Germany,  more  and  more  difificulty  was  felt  in  ascribing  to 
it  universal  dominion.  Yet  no  one  dreamed  of  asserting 
boldly  that  independent  states  had  no  earthly  superior;  and 
therefore,  when  the  papacy  came  forward  with  its  claims, 
men's  minds  were  predisposed  to  accept  them.  As  an  arbi- 
trator between  states  the  pope  often  exercised  great  influence 
for  good.  In  an  age  of  force  he  introduced  into  the  settlement 
of  international  disputes  principles  of  humanity  and  justice, 
and  had  the  Roman  Curia  always  acted  upon  the  principles 
which  it  invariably  professed,  its  existence  as  a  great  court  of 
international  appeal  would  have  been  an  unmixed  benefit."' 

Rise  of  the  European  Monarchies.  During  the  period 
between  the  fourteenth  and  sixteenth  centuries,  and  as  a  con- 
sequence of  the  decline  of  the  feudal  nobility,  the  great  mon- 
archies of  Europe  began  to  acquire  strength  and  consistency, 
and  to  assume  something  of  their  present  territorial  form. 
These  governments  were  absolute  in  character,  and  although 
some  of  them  were  at  times  administered  with  considerable 
liberality,  in  none  were  popular  rights  recognized,  and  none 
were  limited  by  representative  institutions.  Not  only  were 
they  absolute  in  form,  but  in  most  of  them  the  idea  of  sov- 
ereignty had  become  associated  with  the  person  of  the  sov- 
ereign. He  was  the  head  of  the  state;  the  title  to  its  terri- 
tory and  property  was  vested  in  him,  and  he  was  held  to  be 
able  to  dispose  of  it  at  will.     Such  restraints  as  were  estab- 

'  Lawrence,  Essays  on  Modern  International  Law,  p.  149;  Ibid.  Int. 
Law,  §§  24-28 ;  Holtzendorff,  §  82. 


l6  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

lished  upon  the  power  of  the  sovereign  had  chiefly  to  do  with 
internal  afl'airs,  and  rarely  extended  to  his  foreign  relations. 
He  declared  war,  engaged  in  alliances,  offensive  and  defensive, 
entered  into  treaty  stipulations,  increased  or  diminished  his 
territories  by  sale,  gift,  or  exchange,  for  such  reasons  as  com- 
mended themselves  to  his  judgment,  or  to  his  views  of  pro- 
priety or  expediency;  as  a  result  diplomatic  relations  soon 
became  common,  alliances  were  entered  into,  agents  were 
established  at  foreign  capitals,  through  whom  information 
was  obtained  as  to  the  schemes  and  intentions  of  foreign 
powers.  Embassies  were  sent  and  received,  ambassadors  main- 
tained, and  great  wars  were  undertaken.  Conquests  were  made, 
and  territory  changed  hands ;  sometimes,  as  we  have  seen,  as 
a  result  of  war,  sometimes  after  the  manner  of  a  transfer  of 
property  among  private  individuals.' 

Such  intricate  and  important  international  relations  could 
not  long  exist  without  furnishing  precedents  of  sufficient 
value  to  be  cited  in  negotiation,  or  without  some  practices  and 
usages  acquiring,  by  frequent  repetition  or  general  consent, 
the  binding  force  of  international  customs.  The  sea-laws  fur- 
nished a  basis  upon  which  to  erect  a  code  of  maritime  law ; 
their  experience  in  war  and  negotiation  furnished  the  states  of 
Europe  with  an  abundance  of  material  for  the  preparation  of 
a  code  of  international  usages,  and  the  Roman  law  furnished 
a  stock  of  legal  maxims  and  principles  with  which  to  bind  the 
whole  fabric  together. 

The  Influence  of  Grotius.  At  the  close  of  this  period, 
and  at  a  most  opportune  moment  in  the  history  of  the  science, 

'  "It  may  here  be  noted  that  one  on  the  other  hand,  by  his  acquisi- 

favorable   circumstance  which    fa-  tions  or  losses,  by  his  marriage,  by 

cilitated  the  creation  of  a  system  his  treaties,  by  his  enmities,  and  by 

of  international  law  was  the  mo-  his    wars,    irreparably    committed 

narchic  form  of  government  which,  the  state  he  represented,  and  his 

up  to  very  recent  times,  has  uni-  conduct  in  these  respects  was  only 

versally  prevailed  in  Europe.    The  to  a  small  extent  influenced  by  any 

state  was  bound  up  with,  and  to  a  constitutional    forces    within    the 

certain  extent  lost  in,  the  individu-  state    itself."      Amos,    Science   of 

ality  and  fortunes  of  its  sovereign  Law,  p.  336;  Holtzendorff,  §  82. 
for  the  time  being.  The  sovereign, 


DEFINITION   AND   HISTORY  1/ 

there  appeared  the  first  authoritative  treatise  upon  the  law  of 
nations,  as  that  term  is  now  understood.  It  was  prepared  by 
Hugo  Grotius,  a  native  of  Delft,  in  Holland.  He  was  a  man 
of  great  learning,  of  considerable  experience  in  public  affairs, 
and  a  profound  student  of  the  Roman  law ;  and  his  treatise, 
which  was  published  early  in  the  seventeenth  century,'  is,  in 
substance,  an  application  of  its  principles  to  the  external  re- 
lations of  states.  It  was  at  once  perceived  to  be  a  work  of 
standard  and  permanent  value,  of  the  first  authority  upon  the 
subject  of  which  it  treats.  General  Halleck  justly  observes 
with  reference  to  it  that  it  "  has  been  translated  into  all  lan- 
guages, and  has  elicited  the  admiration  of  all  nations  and 
of  all  succeeding  ages.  Its  author  is  universally  regarded  as 
the  great  master-builder  of  the  science  of  international  juris- 
prudence."^ 

Great  as  were  the  inherent  merits  of  Grotius's  work,  how- 
ever, it  could  never  have  exercised  so  decisive  an  influence 
upon  state  affairs  as  it  did,  had  it  not  appeared  at  a  time  when 
the  existing  political  conditions  were  especially  favorable  for 
its  reception.  The  Thirty  Years'  War,  then  in  progress,  had 
been  marked  during  its  course  by  a  refinement  of  barbarous 
cruelty,  and  by  acts  of  atrocity  perpetrated  upon  the  un- 
armed and  unoffending  inhabitants  of  the  valley  of  the 
Rhine,  which  stand  without  a  parallel  in  the  history  of  ancient 
or  modern  war.  Many  of  the  military  operations  had  been 
undertaken  rather  with  a  view  to  the  chance  of  pillage  than 
from  a  desire  to  injure  or  defeat  the  enemy.  Population  had 
diminished,  great  tracts  of  territory  had  been  laid  waste,  and 
commerce  and  manufactures  had  wellnigh  disappeared.'  With 
an  experience  of  the  horrors  of  war  so  bitter  and  long  con- 
tinued as  that  which  Europe  was  then  undergoing,  it  is  not 
remarkable  that  men  should  have  been  willing  to  listen  to  any 

•  1625.  pp.  606-628;   Creasy,  §  84;  Law- 

'  I  Halleck,  p.  12;    I  Twiss,  int.  rence.  Int.  Law,  §§  31-41. 
pp.    17-21  ;    Manning,    pp.    23-31  ;  ^  Gardiner,    The    Thirty   Years' 

Westlake,  pp.  36-51  ;  Walker,  Sci-  War,  chap.  xi.  §  iii.  pp.  217-220; 

ence  of  Int.  Law,  pp.  91-1 1 1 ;  Wool-  Lawrence,  Int.  Law,  §  32  ;  Holtzen- 

sey.  §§  31,  32;   II  Ward's  Inquiry,  dorflf,  §84;  Hosack,  pp.  173-226. 


l8       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

scheme  which  promised  to  mitigate  the  severity  of  war,  or  to 
lighten  in  any  degree  its  terrible  burdens. 

But,  great  as  the  losses  had  been  in  men  and  material 
wealth,  it  may  be  doubted  whether  a  desire  to  ameliorate  the 
existing  usages  of  war  would  have  been,  of  itself,  an  agency 
sufificiently  potent  to  bring  about  a  reform  of  international 
law,  had  not  another  and  a  more  powerful  factor  contributed 
directly  to  the  same  end.  During  the  continuance  of  the 
Thirty  Years'  War,  the  purposes  for  which  the  war  was  carried 
on  had  undergone  a  complete  change.  The  contest  had 
originated  in  an  attempt  on  the  part  of  the  Protestant  princes 
of  Germany  to  achieve  their  political  and  religious  indepen- 
dence. In  its  later  stages  it  had  been  transformed  into  a  strug- 
gle for  preponderance  between  France  and  Austria,  and  it 
had  terminated,  in  1648,  to  the  complete  advantage  of  the 
former  power.  In  the  course  of  the  war  the  old  idea  of  papal 
and  imperial  supremacy  had  finally  disappeared.  The  ancient 
standard  of  international  obligation  had  ceased  to  exist,  and  a 
newer  and  more  enduring  standard  had  to  be  erected  in  its 
place.  As  the  idea  of  a  common  earthly  superior  was  no  longer 
recognized,  it  became  necessary  to  invent  a  theory  which,  while 
conforming  to  existing  political  conditions,  should  furnish  a  safe 
and  practicable  rule  for  the  conduct  of  interstate  relations. 

Such  a  scheme  was  that  proposed  by  Grotius.  The  ma- 
terials for  his  work  were  drawn  from  two  principal  sources, 
the  law  of  nature' — \\\^  jus  gentium  of  the  Romans  — and  the 

'  The  law  of  nature  was  a  system  §§  31-36;  Maine,  Anc.  Law,  pp.  70- 

of  ethics,  or  morals,  and  was  known  108. 

to  the  Romans,  in  a  rudimentary  The  law  of  nature  is  defined  in 
{oxm,  ■AS,  l\i&  jus  natures  ;  as  devel-  the  Institutes  of  Justinian  as  that 
oped  by  later  writers  it  was  known  law  which  nature  "  has  taught  to  all 
to  students  in  Grotius's  time  and  animals;  a  law  not  peculiar  to  the 
still  forms  an  important  part  in  the  human  race,  but  shared  by  all  living 
courses  of  academic  study  in  many  creatures,  whether  denizens  of  the 
states  of  Continental  Europe  and  air,  the  dry  land,  or  the  sea."  Insti- 
in  the  states  colonized  by  them  in  tutes,  book  i.  title  ii.  par.  i.  Wild- 
Central  and  South  America.  See  man,  pp.  2-14.  The  function  which 
also  Westlake,  pp.  18-21  ;  I  Lor-  the  so-called  "law  of  nature  "has 
imer.  Institutes,  pp.  19-26;  Wild-  performed  in  the  development  of 
man,  pp.  2-14;  Lawrence,  Int.  Law,  the  law  of  nations,  is  a   proof,  if 


DEFINITION   AND    HISTORY 


19 


tacit  or  express  consent  of  nations.  The  last  of  these  sources 
of  authority  was  beHeved  by  him  to  be  merely  supplemental 
to  the  first,  and  could  ordain  nothing  contrary  to  it/  States, 
like  men,  were,  from  his  point  of  view,  controlled  in  their 
actions  and  relations  by  the  operation  of  a  law  of  nature  as 
ancient  as  the  universe  itself.  This  law  could  be  added  to, 
but  not  modified.  He  beHeved  it  to  constitute  a  standard 
by  which  the  conduct  of  states  and  the  actions  of  individuals 
could  be  finally  judged  ;  and  he  imagined  that  the  Roman 
Empire  afforded  an  historical  example  of  its  successful  appli- 
cation in  international  affairs.^ 


such  were  needed,  that,  at  the  time 
at  which  the  rules  for  regulating 
the  mutual  relations  of  states  were 
beginning  to  be  systematized,  a 
prevalent  conception  existed  of  a 
great  moral  order  in  which  states, 
like  individual  persons,  must  find 
their  place.  The  exact  requisitions 
which  this  moral  order  implied 
were  indeed  very  obscurely  per- 
ceived, and  were  drawn  from  quar- 
ters of  the  most  opposite  character. 
Thus  the  maxims  of  primitive  Chris- 
tianity were  mingled  with  the  con- 
clusions of  Middle  Age  casuists; 
and  the  prescriptions  of  knight- 
errantry  with  the  suggestions  of 
a  rudely  calculated  expediency." 
Amos,  Science  of  Law,  334.  The 
termsj2is  naturce  ?in(\  Jtis  gefttiuin, 
though  closely  allied  in  meaning, 
are  by  no  means  s3monymous. 
The  former  was,  as  has  been  seen 
(page  18,  note  i),  a  bod}'  of  ethical 
principles  ;  the  latter  was  a  system 
of  jurisprudence.  So  long  as  a 
particular  principle  remained  in 
the  domain  of  ethics,  it  formed  a 
part  of  the  y^^^y  naturce;  so  soon, 
however,  as  it  came  to  be  recog- 
nized as  a  legal  rule  of  conduct, 
and  had  been  sanctioned  as  such 
by  the  state  and  applied  by  the 
courts  in  the  decision  of  cases,  it 
became  part  of  the  jus  gentium. 
Westlake,    p.    22 ;    Lawrence,    Int. 


Law,  §§30-36;  Manning  (Amos  ed.), 
p.  10,  note;    Maine,  Anc.  Law,  ch. 

3-4- 

'  The  Jus  gentium  is  thus  defined 
in  the  "Institutes  of  Justinian": 
"  The  civil  law  of  Rome,  and  the 
law  of  all  nations,  are  thus  distin- 
guished. The  laws  of  every  people 
governed  by  statutes  and  customs 
are  partly  peculiar  to  itself,  partly 
common  to  all  mankind.  Those 
rules  which  a  state  enacts  for  its 
own  members  are  peculiar  to  itself, 
and  are  called  the  civil  law ;  those 
rules  prescribed  by  natural  reason 
for  all  men  are  observed  by  all  peo- 
ples alike,  and  are  called  the  law  of 
nations."  Institutes,  book  i.  title  ii. 
par.  2.  See  also  Lawrence,  Essays 
on  Modern  International  Law,  p. 
179,  and  the  title  "The  Roman 
Law "  in  the  discussion  of  the 
sources  of  international  law. 

'^  When  once  the  idea  began  to 
prevail,  that  the  governors  of  the 
several  states  of  Europe  were  sub- 
ject to  some  body  of  laws,  bearing 
an  analogy  to  the  national  law  of 
each  state,  there  was  no  need  for  a 
long  incubating  process,  during 
which  the  substance  of  the  new 
(international)  law  should  slowly 
acquire  its  true  shape  and  size. 
The  substance  was  fully  dev^eloped, 
at  once,  in  all  its  proportions. 
Amos,  Science  of  Law,  333. 


20  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

We  now  know  that  Grotius's  theory  of  international  obliga- 
tion was  in  the  main  correct,  however  erroneous  may  have 
been  his  conception  of  its  origin  and  sanction  ;  and  it  is  a  re- 
markable tribute  to  the  intrinsic  excellence  of  his  work  that 
it  has  endured  so  successfully,  for  more  than  two  centuries 
and  a  half,  the  assaults  of  destructive  criticism  and  the  crucial 
test  of  practical  experience.  None  of  the  many  ingenious 
theories  which  have  been  advanced  in  opposition  to  his  have 
received  even  transient  recognition,  and  upon  the  foundations 
so  deeply  and  solidly  laid  by  its  immortal  founder  the  fabric 
of  the  science  securely  rests." 

The  Sources  of  International  Law 

The  Roman  Law.  This  is  one  of  the  earliest  as  it  is  in 
many  respects  the  most  complete  and  elaborate  system  of 
law  that  has  ever  existed.  Most  of  the  codes  of  municipal 
law  now  in  force  among  the  Continental  states  of  Europe  are 
either  directly  based  upon  it,  or  derive  from  it  the  greater  part 
of  the  legal  principles  which  they  contain.  As  it  was  the  only 
system  of  law  with  which  the  earlier  writers  on  international 
law  were  familiar,  and  as  its  principles  seemed  to  be  suffi- 
ciently general,  in  character  and  scope,  to  apply  to  the  recip- 
rocal relations  of  states,  its  authority  was  frequently  invoked 
by  them  in  the  preparation  of  their  treatises. 

The  Jus  Gentium.  Like  all  ancient  legal  systems,  the  law 
of  Rome  was  a  development  of  the  governmental  experience 
of  the  Roman  people,  to  whom  its  provisions  exclusively  ap- 
plied. Such  aliens  and  strangers  as  were  resident  in  the  city 
were,  at  first,  without  legal  rights  or  privileges,  and  so  long  as 
Roman  citizenship  maintained  its  peculiar  character  of  exclu- 
siveness,  the  sanctions  and  penalties  of  the  civil  law  were 
held  to  be  binding  upon  Roman  citizens  alone. 

As  the  alien  class  increased  in  numbers,  as  well  as  in  wealth 
and  importance,  it  became  necessary  to  give  to  its  members 

'  Wildman,  pp.  22-24;  Man-  pp.  91-107  ;  I  Halleck,  chap.  i.  §  15  ; 
ning,  pp.  24-29 ;  Westlake,  pp.  36-  Holtzendorfif,  §  86  ;  Lawrence,  Int. 
51  ;  Walker,  Science  of  Int.  Law,      Law,  §§31-38. 


DEFINITION  AND    HISTORY  21 

a  definite  legal  status,  and  to  secure  to  them  some  measure  of 
protection  in  their  persons  and  property.  "  The  expedient  to 
which  they  resorted  was  that  of  selecting  the  rules  of  law 
common  to  Rome  and  to  the  different  Italian  commonwealths 
in  which  the  immigrants  were  born.  In  other  words,  they  set 
themselves  to  form  a  system  answering  to  the  primitive  and 
literal  meaning  oi  Jus  gentium — that  is,  lazu  common  to  all  na- 
tions. They//j'  gentium  was,  in  fact,  the  sum  of  the  common 
ingredients  in  the  customs  of  the  old  Italian  tribes,  for  they 
were  all  the  nations  whom  the  Romans  had  any  means  of  ob- 
serving, and  who  sent  successive  swarms  of  immigrants  to 
Roman  soil.  Whenever  a  particular  usage  was  seen  to  be 
practised  by  a  large  number  of  separate  races  in  common,  it 
was  set  down  as  part  of  the  laiu  common  to  all  natiojts,  or  Jus 
gentium y ' 

"  It  is  almost  unnecessary  to  add  that  the  confusion  between 
jus  gentium,  or  law  common  to  all  nations,  and  international 
laiv  is  entirely  modern.  The  classical  expression  for  inter- 
national laiv  is  jus  feciale,  or  the  law  of  negotiation  and  di- 
plomacy."'^  "No  passage,"  says  Sir  Henry  Maine,  "has  ever 
been  adduced  from  the  remains  of  Roman  law  which,  in  my 
judgment,  proves  the  jurisconsults  to  have  believed  natural 
law  to  have  obligatory  force  between  independent  common- 
wealths ;  and  we  cannot  but  see  that  to  the  citizens  of  the 
Roman  Empire,  who  regarded  their  sovereign's  dominions  as 
conterminous  with  civilization,  the  equal  subjection  of  states 
to  the  law  of  nature,  if  contemplated  at  all,  must  have  seem- 
ed at  most  an  extreme  result  of  curious  speculation.  The 
early  modern  interpreters  of  the  jurisprudence  of  Rome,  mis- 
conceiving the  meaning  of  the  jus  gentium,  assumed  without 
hesitation  that  the  Romans  had  bequeathed  to  them  a  system 
of  rules  for  the  adjustment  of  international  transactions."^ 

'  Maine,   Ancient    Law,    p.  47;  lology,  vol.  xiii.  No.  26;  Manning, 

Holtzendorff,  §  64;    Westlake,  pp.  p.  10,  note;  I  Lorimer,  chap.  i. 
18-21  ;    I    Halleck,    chap.    i.    §   4 ;  *  Maine,  Ancient  Law,  p.  50. 

Wildman,  pp.  5-14;  I  Philllmore,  §§         Mbid.  p.  95.      Morey,   OutHnes 

36-38 ;  Creasy,  §§  88,  89  ;  Lawrence,  of  the  Roman  Law,  p.  207. 
Int.  Law,  §  38;  Journal  of   Phi- 


22  THE    ELEMENTS    OF    INTERNATIONAL    LAW 

It  is  not  necessary  to  suppose,  however,  that  Grotius  was 
mistaken,  either  in  his  view  of  the  spirit  of  the  Roman  law, 
or  in  his  appHcation  of  its  principles  to  states  in  their  interna- 
tional relations.  That  system  was  the  outgrowth  of  long  ex- 
perience, and  its  methods  of  dealing  with  the  legal  relations 
of  individuals  were  elaborated  with  great  care.  From  the 
stand-point  of  the  civil  law  the  Roman  land-owner  was  regarded 
as  an  independent  proprietor  within  the  boundaries  of  his 
landed  estate.  It  provided  elaborate  and  adequate  remedies, 
which  were  applied  whenever  his  personal  or  property  rights 
were  trespassed  upon  or  invaded,  and  it  regarded  all  Roman 
landed  proprietors  as  equal  before  the  law.  Grotius,  in  his 
great  work,  but  applied  these  principles  to  sovereign  states. 
Each  state,  according  to  his  view,  was  independent  within  its 
territorial  limits,  and  all  states  were  equal  in  dignity  and  in 
the  number  of  sovereign  rights  which  they  enjoyed,  however 
unequal  they  may  have  been  in  power  and  influence.' 

These  principles  lie  at  the  foundation  of  modern  interna- 
tional law,  and  such  of  its  doctrines  as  have  received  general 
sanction  are  based  directly  upon  them.  It  was  thus  easy  for 
Grotius  and  his  successors  to  deduce  from  the  Roman  law  by 
far  the  greater  part  of  the  system  of  international  law  as  it 
exists  to-day.  In  its  fundamental  principles  it  has  changed 
but  little  since  Grotius's  day.  In  its  detailed  rules  it  is  under- 
going a  slow  but  constant  modification  ;  the  tendency  being 
towards  greater  liberality  of  view  in  the  treatment  of  new 
questions  as  they  arise,  and  in  the  modification  or  amendment 
of  old  practices,  to  adapt  them  to  the  conditions  imposed  by 
modern  civilization.  Like  municipal  law,  it  keeps  pace  with 
the  development  of  the  human  race  ;  it  is  affected  by  that  de- 
velopment, and,  in  turn,  reacts  upon  it,  influencing  the  cur- 
rent of  human  events  to  a  remarkable  degree." 

'  Amos,  Science  of  Law,  p.  338;  made  to  produce  uniformity,  cer- 

Lavvrence,     Int.     Law,     §§  31-38;  tainty,  and  publicity;  every  eflort 

Holtzendorflf,  §§  57-64.  that  is  made  after  harmony  of  spirit 

°  Every  improvement  that  is  in-  and  of    interpretative    method   on 

troduced  into  the  rules  of  interna-  the   part  of  the  public  lawyers  of 

tional  law;  every  attempt  that   is  different  states  —  all   point   to  the 


DEFINITION   AND    HISTORY  23 

Custom  and  Usage.  The  force  of  custom  and  usage  in 
the  regulation  of  conduct  is  as  potent  in  the  intercourse  of 
states  as  it  is  in  the  affairs  of  individuals.  When  the  acts  of  a 
state  are  criticised,  the  attempt  is  invariably  made  to  justify 
them  by  a  reference  to  approved  precedents;  so,  too,  when  the 
correct  line  of  governmental  conduct  is  not  quite  clear,  the 
attempt  is  made  to  support  proposed  courses  of  action  by 
a  similar  reference  to  precedents.  For  this  reason  usages  which, 
by  long  continued  observance,  have  ripened  into  approved  cus- 
toms, acquire  sanction  as  rules  of  international  law.  As  the 
acts  of  the  past  are  thus  made  to  influence  present  conduct, 
it  would  seem  to  follow  that  the  influence  of  custom,  as  a  source 
of  international  law,  would  be  extremely  conservative;  this  is 
not  the  case,  however,  since  a  rule  based  upon  custom  must 
justify  itself,  not  only  by  precedent,  but  must  also  conform  to 
the  moral  standards  of  the  present  day.  Otherwise  customs 
and  practices  which  are  now  universally  condemned — such  as 
slavery,  the  killing  of  prisoners  in  war,  the  pillage  of  unde- 
fended towns,  and  other  cruel  and  inhuman  practices— would 
be  justified  by  custom  and  precedent.  This  is  not  the  case,  and  a 
custom  which  does  not  conform  to  modern  standards  of  hu- 
manity and  enlightenment  is  without  authority  or  value  as  the 
source  of  a  rule  of  international  law.' 

Treaties  and  Conventions.  As  international  law  derives 
its  binding  force  from  the  consent  of  nations,  and  as  treaties 
are  compacts,  freely  entered  into,  describing  the  conditions 
and  defining  the  limitations  which  nations  agree  to  observe  in 
their  intercourse  with  each  other,  it  follows  that  they  are  of 
the  highest  authority  in  determining  what  that  law  is  upon 

gradual  elaboration  among  states  later  sense.  Amos,  Science  of  Law, 
of  what  may  be  properly  called  a  p.  326 ;  Creasy,  §  89. 
supreme  political  authority.  What  '  Manning  (.'\mos  ed.),  pp- 80-82  ; 
form  this  authority  will  take  it  may  I  Halleck,  p.46;  II  Ibid.  461 ;  I  Phil- 
be  impossible  for  us,  in  this  gener-  limore,  pp.  38-42  ;  Woolsey,  §  28; 
ation,  so  much  as  to  guess,  just  as  Vattel,  prelim,  chap.  §  25;  Walker, 
the  members  of  an  early  develop-  Science  of  Int.  Law,  pp.  12,  19-21  ; 
ing  village  community  had  no  ma-  I  Lorimer,  pp.  27-37  ;  Hall,  pp.  6. 
terials  from  which  to  construct  a  7;  I  Ortolan,  p.  64;^  Holtzendorflf, 
notion  of  civil  government  in  its  §25;  I  Pradier-Fodere,  §  28. 


24  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

any  point  covered  by  their  stipulations.  For  example,  many 
naturalization  treaties  stipulate  for  a  period  of  residence,  usu- 
ally five  years  in  length,  as  a  condition  preliminary  to  naturali- 
zation. This  warrants  the  inference  that  a  period  of  residence 
is  a  necessary  preliminary  to  a  change  of  national  allegiance. 
Other  treaties  provide  that  consuls  may,  under  certain  circum- 
stances, perform  judicial  acts  in  foreign  ports.  This  warrants 
the  inference  that  no  such  exercise  of  consular  jurisdiction  is 
lawful  unless  authorized  by  treaty  stipulations.' 

The  Municipal  Law  of  States.  Much  information  may 
be  derived  from  this  source  upon  questions  having  at  once  a 
municipal  and  an  international  phase.  Such  is  the  case  with 
the  subjects  of  citizenship  and  naturalization,  of  neutrality, 
extradition,  and  piracy.  The  army  and  navy  regulations  of 
different  states,  and  the  rules  adopted  by  them  for  the  guid- 
ance of  their  diplomatic  and  consular  representatives,  throw 
light  upon  many  questions  of  international  usage.'' 

The  Judgments  of  International  Courts,  or  Boards  of 
Arbitration.  These  tribunals  are  created  for  the  express 
purpose  of  adjusting  international  disputes  and  differences. 
Their  judgments,  therefore,  should  constitute  precedents  as 
binding  upon  sovereign  states  as  are  the  decisions  of  municipal 
courts  upon  individuals  who  carry  their  diflficulties  to  them  for 
adjustment.'  The  most  conspicuous  example  of  a  resort  to 
the  principle  of  arbitration,  as  a  means  of  adjusting  an  inter- 
national difference,  will  be  found  in  the  operations  of  the  Ge- 
neva Tribunal,  a  court  created  by  treaty  between  Great  Britain 


'  Manning,  pp.  55-61  ;  I  Lorimer,  Science  of  International  Law,  pp. 

pp.  37-51  ;  I  Halleck,  chap.  ii.  §  28;  49,  50,  note. 

Pomeroy,  §§   35-39;    Hosack,  pp.  ^l  Pradier-Fodere,  §  29;  I  Hal- 

131-162;  Creasy,  §  90 ;  I   Ortolan,  leck,  chap.  ii.  §  24;   Holtzendorflf, 

pp.  79-103;  Holtzendorff,  §§  26-28;  §  29;  Wheaton,  §  15,  par.  3;  Pome- 

I  Phillimore,  pp.  44-54 ;  Wheaton,  roy,  §  40;  Woolsey,  §  29;  Glenn, 

§  15,  par.    2;  Ward's    Inquiry,  pp.  §  6;    I  Phillimore,  §§  53,54;  Law- 

231-358;  I  De  Martens,  Precis,  §§  rence,  §  66 ;  Risley,  pp.  28,  29. 

13,14;  Woolsey,  §  30;  Glenn,  §5;  ^Creasy,  §§  86,  87;  Lawrence,  Int. 

Hall,    int.  chap.    pp.    7-1 1;     Law-  Law,  §64;  I   Pradier-Fodere,  §  32 ; 

rence.  International  Law,  §  63  ;    I  I  Halleck,  chap.  ii.  §  23;  Risley,  pp. 

Pradier-Fodere,    §    27;     Walker,  32,33. 


DEFINITION    AND    HISTORY  2$ 

and  the  United  States,  to  which  was  referred  the  adjustment 
of  the  important  controversy  known  as  the  "Alabama 
Claims."  ' 

The  Decisions  of  Municipal  Courts  upon  Questions  of 
International  Law.  Although  the  courts  of  a  state  have 
chiefly  to  do  with  the  decision  of  questions  arising  under  its' 
own  municipal  law,  they  are  sometimes  called  upon  to  recog- 
nize and  apply  the  rules  of  international  law  in  the  decision 
of  particular  cases.  This  is  found  to  be  necessary  when  the 
national  character  of  an  individual  is  drawn  in  question,  or 
his  capacity  to  perform  certain  acts — as  to  make  contracts  or 
to  hold  or  transfer  property.  In  the  decision  of  what  are 
called  prize  cases,  which  is  usually  an  incident  of  the  juris- 
diction of  admiralty  courts,  the  law  administered  is  almost 
exclusively  international.  The  decisions  upon  questions  of 
international  law  which  have  been  rendered  by  Marshall  and 
Story  in  the  United  States,  and  by  Lord  Stowell,  Sir  Robert 
Phillimore,  and  Dr.  Lushington  in  England,  are  of  the  highest 
authority,  and  have  been  cited  repeatedly  as  precedents  in 
negotiation.* 

The  Diplomatic  Correspondence  of  States;  State  Papers; 
Foreign  Relations,  etc.  These  are  valuable  sources  of  in- 
formation upon  all  questions  connected  with  the  law  and 
usages  of  nations.  The  opinions  of  law  of^cers  and  attorneys- 
general  to  their  respective  governments,  the  correspondence 
of  a  state  with  foreign  powers,  and  the  reports  of  commissions 
created  for  the  purpose  of  obtaining  and  digesting  information 
upon  special  subjects,  are  examples  of  this  class.  Unfortu- 
nately much  correspondence  between  governments  is  still  re- 
garded as  confidential,  and  so  is  not  easily  accessible.  Eng- 
land and  the  United  States,  however,  publish  at  intervals  the 

'  For  a  full  discussion  of  the  ere-  Int.   Law,   pp.   46-56  ;    I   Halleck, 

ation   and   operations  of  this  tri-  chap.  ii.  §§  22-25;  Wheaton,  §  15, 

bunal,    see    the    chapter    entitled  par.  i  ;  Wildman,  pp.  36, 37;  Glenn, 

"  Neutrality."  §  5  ;  Woolsey,  §  30  ;   Risley,  pp.  32- 

*  Pomero)^,  Int.  Law,  §45  ;  I  Pra-  35;  I  Phillimore,  §  57;  Lawrence, 

dier-Fodere,  §§  30-32;    Holtzen-  Int.  Law,  §  64. 
dorff,  §§  29-31 ;  Walker,  Science  of 


26       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

greater  part  of  their  correspondence  with  foreign  powers.  The 
practice  of  other  states  in  this  respect  is  less  uniform.' 

General  Histories;  The  Histories  of  Important  Epochs; 
Biographies  of  Eminent  Statesmen.  From  these  sources 
much  information  may  be  obtained  as  to  the  history  of  the 
» wars,  negotiations,  and  treaties  which  have  exercised  a  great, 
and  sometimes  decisive,  influence  upon  the  mutual  relations 
of  states  and  upon  the  development  of  the  science  of  inter- 
national law." 

The  Works  of  Text  Writers.  The  writings  of  those  who 
.  have  made  the  history  and  development  of  international 
usages  a  subject  of  special  study  will  always  constitute  our 
chief  source  of  knowledge  upon  the  subject.  The  earlier 
writers  were  roughly  grouped  into  two  schools.  One,  made 
up  chiefly  of  Continental  authors,  who  were  familiar  with  the 
Roman  law,  and  by  whom  great  authority  was  attached  to 
the  views  of  text  writers.  The  other,  composed  of  English 
and  American  writers,  whose  works,  strongly  influenced  by 
the  common  law  of  England,  attach  the  greatest  weight  to 
the  decisions  of  competent  courts  and  to  the  precedents  es- 
tablished by  the  usages  of  nations  and  recognized  by  them  as 
binding  in  their  intercourse  with  each  other.  The  present 
tendency  is  to  obliterate  this  distinction.  The  history  of  both 
the  Roman  and  common  law  has  been  exhaustively  studied, 
and  is  now  generally  known,  and  the  historical  method  of 
treatment  is  found  to  be  as  successful  in  its  application  to 
international  as  to  municipal  law.' 

A  decided  unanimity  of  opinion  among  authors  as  to  the 
reason  or  justice  of  a  particular  usage  is  strong  evidence  of  its 


'  Manning,  pp.  55-64;  I  Lorimer,  '  Pomeroy,  §§  45,  46;  Wildman, 

Institutes,  bk.i.  ch.v. ;  I  Halleck.ch.  pp.  22-37  ;  I  Pradier-Fodere,  §§33, 

ii.§3o;  Wheaton,§  15,  par.  5;  Pome-  34;  I   Halleck,  chap.   ii.  §§  26,27; 

roy,  §  41  ;  Woolsey,  §  30 ;  Creasy,  §§  Wheaton,  §  15,  par.  i  ;  Creasy,  pp. 

80-91;  Lawrence,  Int.  Law,  §  65.  78,80,90;  Glenn,  §  5, par.  b;  Wool- 

MVheaton,   §15,    par.   6;    Pom-  sey,  §  30  ;  I  Phillimore,  §  58  ;  Holt- 

eroy,  §  39;  Creasy,  pp.  88,  89;  Glenn,  zendorff,  "  Esquisse  par  A.  Rivier," 

§  5,  par.  e ;  Woolsey,  §  34 ;  I  Pradier-  pp.  35 1-494. 
Fodere,  §  26  ;  Holtzendorff,  §  39. 


DEFINITION    AND   HISTORY  2J 

general  acceptance  as  a  rule  of  international  law.  "  Writers 
on  international  law,  however,  cannot  make  the  law.  To  be 
binding,  the  law  must  have  received  the  assent  of  the  nations 
who  are  to  be  bound  by  it."' 

International  Public  Opinion.  This  is  one  of  the  most 
potent,  if  not  the  most  powerful,  of  the  agencies  now  acting 
upon  the  development  of  international  law.  In  proportion  as 
civilization  and  enlightenment  increase  will  the  influence  of 
public  opinion  increase  as  a  factor  in  shaping  the  policy  and 
practice  of  states  and  in  formulating  the  rules  of  international 
law.  Its  effects  can  be  seen  in  the  abolition  of  obnoxious 
practices,  of  which  the  slave-trade  is  an  example,  in  the  re- 
striction upon  the  trafific  in  coolies,  in  the  prevention  of  ag- 
gressive wars,  and  in  the  advancement  of  arbitration  as  an 
agency  for  the  solution  of  international  differences,'' 

Divisions  of  International  Law 

Basis  of  Classification.  The  rules  of  international  law 
are  susceptible  of  reference  to  one  or  both  of  two  ultimate 
sources : 

(^.)  Those  deduced   from   relations  based  upon  ethical  or 

'  Justice    Cockburn,    in    R.    vs.  pose  on  the  authority  of  an  ante- 

Keyn  ;    Stephens,  "  History  of  the  cedent   'law  of  nature.'     This  law 

Criminal  Law,"  vol.  ii.  p.  41.     "  In  of  nature  is  here  intended  to  imply 

the  actual  erection  of  the  complete  a  body  of  prescriptions  of  universal 

structure  of  international  law,  there  and  necessary  validity,  the  exact 

have  been  two  celebrated  schools  terms  of  them  being  discoverable 

which,  severally,  have  affected  to  on  the  application  of  certain  wide 

extract  from  different,  or  even  from  andgeneralmaximsof  justice, truth, 

opposite  sources,  the  rules  of  which  mercy  and    humanity,  to  the  par- 

the  body  of  law  is  composed.    The  ticular  circumstances  of   the  case 

one  school  has  rested  the  author-  for  which  the  rule  is  demanded." 

ity   for    an   European  law  of    na-  Amos,  Science  of  Law,  p.  337 ;  see 

tions  upon  the  actual  usage,  and  also  note  3,  p.  26. 
the  assent  implied   in  the  fact  of         °  For  an  extended  discussion  of 

that  usage  of  the  states  of  Europe,  this  subject,  see    Amos,    Political 

The  other  school  has  not  felt  itself  and  Legal  Remedies  for  War;  Lori- 

bound    by  the  limitations  implied  mer,    Institutes,    pp.    87-90;    and 

in  actual  usage  or  assent,  but  has  Mackintosh,    Collected   Works,  p. 

conceived   itself  entitled  to  make  430;  Creasy,    First    Platform,   pp. 

the    European   law  of  nations   re-  362,  363 ;  I  Lorimer,  pp.  87-90. 


28       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

moral  principles.     To  this  class  belong  good  faith,  humanity, 
and  comity,  the  faithful  observance  of  treaties  and  agreements. 

(d.)  Those  deduced  from  usage,  agreement  or  precedent,  and 
so  based  upon  the  consent  of  nations ;  hence  international  law 
may  be  divided  into  : 

(i.)  The  Natural  Law  of  Nations.  As  men  living  to- 
gether in  communities  are  guided  in  their  actions  and  relations 
by  well-known  moral  laws,  so  nations,  which  are  but  societies, 
or  aggregates,  of  men,  and  the  individuals  who  control  and 
represent  them,  are  guided  in  their  actions  by  the  same  moral 
rules.  From  this  body  of  ethical  principles,  governing  alike 
individuals  and  nations,  is  deduced  the  natural  law  of  nations} 

The  code  of  Christian  ethics  contained  in  the  New  Testa- 
ment serves  at  once  as  a  rule  of  conduct  in  international 
relations,  and  as  a  standard  by  which  that  conduct  can  be 
judged,  and  its  inherent  rightfulness  or  wrongfulness  deter- 
mined.' 

(2.)  The  Positive  Law  of  Nations.  It  has  been  seen  that 
the  rules  which  regulate  sovereign  states  in  their  intercourse 
with  each  other,  not  being  imposed  by  a  common  superior,  are 
not  lazvs  in  the  sense  in  which  that  term  is  used  in  municipal 
jurisprudence.  It  has  also  been  seen  that  some  of  the  rules  of 
international  law  are  deduced  from  customs  which  are  them- 
selves derived  from  usages  and  precedents  that  have  been 
sanctioned  by  long  continued  observance ;  others  are  based 
upon  formal  agreements,  or  contracts,  called  treaties,  or  con- 
ventions, to  which,  in  some  cases,  most  states  of  the  civilized 
world  have  been  parties.  This  body  of  rules  is  sometimes 
called  the  Positive  Laiv  of  Nations^  and  has  been  classified, 
having  regard  to  its  sources,  into : 

1  Wbeaton,  Int.  Law,  §  9 ;  Vattel,  ^  I  Stephens,  History  of  the  Crim- 
prelim.  chap.  §  7  ;  I  Halleck,  chap,  inal  Law  of  England,  pp.  33,  34; 
ii-  §  3;  Woolsey,  §§  10-13,  26,  27;  I  Halleck,  chap.  ii.  §§  5,  6 ;  Wool- 
Creasy,  §§  20-48;  I  Phillimore,  pp.  sey,  §§  26,  27;  I  Pradier- Fodere, 
27-39.  §§    1 3-20  ;    Vattel,   prelim,  chap.  § 

^  Creasy,  §§  14a,  15  ;  Woolsey,  §§  27;  Creasy,  §§  65-79;  Holtzendorff, 

10-16;   I  Halleck,  chap.  ii.  §§  2-6;  §§6,7;  I  Ferguson,  §  19;  I  Twiss, 

I  Phillimore,  §§  29-33;   I  Twiss,  §§  §§82-85. 
82-87. 


DEFINITION    AND    HISTORY  29 

(a.)  The  Customary  Law  of  Nations,  including  those  rules 
which  are  deduced  from  usage  and  precedent.' 

(d.)  The  Conventional  Law  of  Nations,  including  those 
rules  which  are  based  upon,  or  deduced  from,  the  consent  of 
states  as  expressed  in  the  treaties  and  conventions  entered 
into  by  them." 

The  Parties  to  International  Law 

The  parties  to  international  law  are  sovereign  states.  In 
the  fullest  acceptation  of  the  term  it  prevails  only  among  the 
Christian  states  of  Europe  and  those  originally  colonized  by 
them  in  America  and  elsewhere.  This  is  due  to  the  fact  that 
these  states  have  had  a  common  historical  development,  and 
recognize  the  same,  or  nearly  the  same,  standards  of  law  and 
morals.  The  area  over  which  it  operates,  however,  is  slowly 
extending.  Turkey  became  a  party  to  it  in  1856,  and  it  is 
steadily  gaining  recognition  in  China,  Japan,  and  other  Asi- 
atic states,  though  its  acceptance  in  those  countries  can  never 
be  so  complete  as  in  the  Western  nations  of  Europe  and 
America.^ 


References.  The  origin  of  the  science  of  international  law  and  its 
historical  development  have  been  made  the  subject  of  treatment  by  many- 
writers,  both  English  and  Continental.  The  earliest  English  work  upon 
this  subject  is  that  of  Ward,  whose  "  Inquiry  into  the  Foundation  and 
History  of  the  Law  of  Nations  in  Europe  "  appeared  in  1795.  Wheaton's 
"History  of  the  Law  of  Nations"  is  the  fullest  and  in  many  respects 
the  most  satisfactory  work  of  the  kind  in  the  English  language.  To  a 
certain  extent  Ward  and  Wheaton  supplement  each  other.     The  legal 

'  Holtzendorflf.  §   25 ;    Manning,  sey,  §  5  :  Wildman,  p.  38 ;  Kliiber, 

pp.  78-85;    I  HaUeck,  chap.  ii.  §§  §§  1,2;  Heftter,  §  i;  Walker,  Manu- 

8,9;  I  Phillimore,  §§41-45.  al,  pp.  1-7 ;  I  Twiss,  §§  i,  2  ;  Dana's 

'  Wheaton,  Int.  Law,  §  9 ;  I  Hal-  Wheaton,  §  16 ;  Hall,  §§1,2;  Blunt- 

leck,  chap.  ii.  §§  7,  8  ;   Vattel,  pre-  schli,  liv.  ii.  §  17  ;  I  Ferguson,  §  16. 

lim.  chap.  §§  24,  25  ;  Creasy,  §  79;  For  a  discussion  of  the  position  of 

Manning,  pp.  86,  87;  Lawrence,  §  China  in  international  law,  see  vol. 

63  ;  I  Phillimore,  chaps,  v.  and  vi.  xvii.  Revue  de  Droit  International, 

§§  49-54;  I  Twiss,  pp.  148-150.  p.  504. 

^  Lawrence,  Int.  Law,  §  42  ;  Wool- 


30       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

and  historical  works  of  Hallam,  Freeman,  Stephen,  Amos,  and  Maine 
in  English,  and  of  Mommsen,  Ranke,  and  Ihne  in  German,  have  contrib- 
uted to  throw  much  light  upon  the  history  of  society  and  institutions, 
and  it  is  impossible  to  understand  the  development  of  international  law 
without  some  knowledge  of  the  historical  development  of  the  stales  and 
societies  of  whose  relations  with  each  other  international  law  is  but  the 
record.  Most  works  upon  the  law  of  nations  contain,  in  their  introduc- 
tory chapters,  more  or  less  full  accounts  of  the  history  of  the  science. 
Among  them  may  be  mentioned  those  contained  in  Halleck,  chaps,  i.  ii. ; 
G.  F.  De  Martens,  §§  1-15;  Phillimore,  introduction  and  chaps,  iii.-ix. ; 
HefTter,  §§  1-13;  Hall,  introduction  and  p.  2,  note;  and  Laurent, 
"Droit  de  Gens,"  and  "  fitudes  sur  I'Histoire  de  I'Humanite,"  liv.  ii., 
chaps,  i.-iii. ;  liv.  iii.,  chaps,  i.-iv. ;  liv.  iv.,  chaps,  i.  ii.  The  profound 
influence  exerted  by  the  Roman  law  upon  the  development  of  the 
science  is  now  fully  appreciated.  For  a  discussion  of  the  question,  see 
Maine,  "  Ancient  Law,"  pp.  92-108;  Amos,  "Science  of  Law,"  pp.  332- 
341;  Morey,  "  Outlines  of  Roman  Law,"  pp.  207-214;  Lawrence,  "  Prin- 
ciples of  International  Law,"  chap.  iii.  §§  30-41;  and  Westlake's  "  Inter- 
national Law,"  chaps,  ii.-v.  The  principal  attempts  to  codify  the  rules  of 
international  law  are  those  undertaken  by  David  Dudley  Field  in  the 
United  States,  and  Professor  Bluntschli  in  Germany.' 

General    Bibliography  of  the  Subject   of  International  Law.     For  a 

full  bibliography  of  the  subject  of  international  law,  see  G.  F.  De  Mar- 
tens, "Precis  du  Droit  de  Gens,"  pp.  357-441;  Kluber,  "Droit  de 
Gens,"  pp.  419-468,  and  HoltzendorfT,  '  Introduction  au  Droit  de  Gens." 
For  a  similar  work  in  English,  see  Woolsey's  "  International  Law,"  ap- 
pendix i.  pp.  413-429. 

'  See  also  vol.  xxi.  Revue  de  Droit  International,  p.  521. 


CHAPTER    II 

STATES    AND    THEIR    ESSENTIAL    ATTRIBUTES:    SOVEREIGN- 
TY,  GOVERNMENT,  TERRITORY 

State:  Nation.  A  state  is  a  society  of  persons  having  a 
permanent  political  organization,  and  exercising  within  a  cer- 
tain territory  the  usual  functions  of  government.' 

The  terms  state  and  nation  are  by  no  means  synonymous. 
The  latter  involves  the  idea  of  a  community  of  race  or  lan- 
guage, the  former  is  applied  to  a  society  of  men  organized 
under  some  form  of  government  and  occupying  a  fixed  terri- 
tory. A  nation  may  furnish  a  contingent  of  population  to 
several  states.  There  is  a  Polish  population  in  Austria,  Russia, 
and  Prussia  ;  a  German  population  in  Prussia  and  Austria  ;  on 
the  other  hand,  the  Austrian,  Russian,  and  Ottoman  empires 
include  several  distinct  nationalities.  As  applied  to  societies 
of  men,  the  term  state  represents  an  artificial,  the  term  nation 
a  natural,  division.  In  recent  times  the  tendency  to  reorgan- 
ize states  upon  a  national  basis  has  been  very  marked.  The 
movements  within  the  present  century  which  have  resulted 
in  quite  a  large  measure  of  national  unity  in  Germany  and 
Italy  are  illustrations  of  this  tendency," 

Citizens:  Subjects.  The  members  of  this  society,  or  the 
individual  units  whose  association  forms  the  body  politic 
known  as    the  state,  are  called  its  citizens   or  subjects ;  the 

•  Creasy,  pp.  93-99,  112-118;  limore,  §§  63-65  ;  I  Pradier-Fodere, 
Wheaton,  §§  17,  33;  Vattel,  liv.  i.  §§  45-68;  Wildman,  p.  39;  Law- 
chap,  i.  §  I  ;  Maine,  Int.  Law,  pp.  lence,  §43;  Heffter,  §§  15-18. 
33,  54,  74  ;  Hall,  §§1,2;  Manning,  p.  "  I  Halleck,  chap.  iii.  §  2  ;  Whea- 
92;  Pomeroy,  §§  47-56;  Woolsey,  ton,  §  17;  Pomeroy,  §  47;  Bowen, 
§36;  Kliiber,  §  20;  Bluntschli,  §§  §9;  I  Pradier-Fodere,  §§  45-68,  69- 
17-27 ;  I  De  Martens,  §  16;  I  Phil-  81  ;  I  Phillimore,  §§  61-65. 


32  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

former  term  being  used  in  states  having  republican  forms  of 
government ;  the  latter  in  those  in  which  monarchical  institu- 
tions exist.  The  duties  and  privileges  of  citizenship  are  de- 
termined, as  will  presently  be  seen,  in  part  by  municipal,  and 
in  part  by  international  law.' 

Government.  The  government  of  a  state  is  the  outward, 
visible  expression  of  its  sovereignty;  it  is  also  the  agency 
by  means  of  which  its  sovereign  powers  are  exercised,  and 
through  which  it  maintains  intercourse  with  other  states  of 
the  civilized  world.  It  speaks  and  acts  through  agents,  called 
public  ofificers,  whose  powers  are  exercised,  in  behalf  of  the 
community  at  large,  in  accordance  with  the  requirements  of 
its  constitution  and  laws.'  Through  one  of  its  departments 
or  offices,  that  of  State,  or  Foreign  Affairs,  its  intercourse 
with  other  states  is  conducted. 

Kinds  of  Government.  A  constitutional  government  is  one 
in  which  the  powers  of  sovereignty  are  defined  and  limited  in 
accordance  with  the  principles  of  a  fundamental  law  called  a 
constitution.  None  of  the  modern  Christian  states  that  ac- 
knowledge the  sanctions  of  international  law  can  be  said  to  be 
absolutely  without  a  constitution  or  fundamental  law  of  some 
sort.  There  may  be  no  substantial  guarantees  of  individual 
right  or  of  personal  freedom ;  indeed,  such  rights  may  not 
exist,  or  may  be  restricted  within  very  narrow  limits.  It  may 
be  a  formal  written  instrument,  as  in  the  United  States ;  it 
may  be  in  great  part  unwritten,  as  is  the  case  with  the  British 
constitution  ;  or,  as  in  many  Continental  states  of  Europe,  it 
may  be  embodied  in  the  municipal  law,  from  which  those  prin- 
ciples which  are  of  a  fundamental  character  may  be  deduced 
and  determined.     In  some  form  it  must  exist.     Without  such 

'  Vattel,  liv.  i.  chap.  xix.  §  212;  xxiii.  of  the  Revue  de  Droit  Inter- 

Pomero3^  §  171.     For  a  discussion  national,  pp.  441-474;  vol.  xxiv.  pp. 

of  the  right  of  suffrage  from  the  69-99 ;  vol.  xxvi.  pp.  51-75,  269-288. 

point  of  view  of  municipal  or  con-  ^  Vattel,  liv.  i.  chap.  1.  §§  2,  3  ; 

stitutional   law,  see   Cooley.  Con-  Kliiber,  §§  30,  53 ;  I  De  Martens,  §§ 

stitutional  Law,  pp.  259-268;  see,  23-28;  Hall,  §  2;  Heffter,  §  16;  I 

also,  the  articles  on  political  suf-  Lorimer,  pp.  203-210. 
frage,  by  M.  Henri  Pascard,  in  vol. 


STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES  33 

a  body  of  fundamental  principles  no  modern  government 
could  be  carried  on.' 

An  absolute  government,  on  the  other  hand,  is  one  in  which 
no  limitations  have  been  imposed  upon  the  sovereign ;  where 
such  limitations  exist,  they  usually  appear  in  some  form  of 
representative  institutions,  the  members  of  which  are  chosen 
by  an  exercise  of  the  right  of  suffrage  on  the  part  of  its  citizens 
or  subjects ;  a  government  is  also  said  to  be  absolute  in  form 
when  the  duties,  privileges,  and  immunities  of  citizenship  have 
not  been  made  the  subject  of  formal  constitutional  guarantees.* 

Classification.  Governments  are  also  classified  according 
to  the  source  of  sovereign  power,  or  the  manner  in  which  it  is 
exercised  in  each.^ 

A  monarcliy  is  a  government  in  which  the  sovereign  powers 
are  concentrated  in  a  single  person.  An  absolute  monarchy 
is  one  in  which  the  concentration  of  sovereign  powers  is  real. 
A  limited  monarchy  is  one  in  which  the  royal  authority  is  re- 
stricted in  its  exercise,  usually  by  representative  institutions 
of  some  kind.  These  restrictions  may  be  so  extensive  in 
character  as  to  reduce  the  sovereign  to  the  condition  of  an 
hereditary  executive.     This  is  the  case  in  England. 

An  aristocracy  is  a  government  in  which  the  sovereign 
powers  are  held  to  reside  in  a  class.  If  the  ruling  class  con- 
stitutes a  small  proportion  of  the  population  the  resulting  gov- 
ernment is  called  an  oligarchy: 

A  democracy  is  a  government  in  which  the  sovereign  powers 
are  held  to  reside  in  all  the  people,  and  are  exercised  by  them 
directly. 

A  republic,  or,  as  it  is  sometimes  called,  a  democratic  re- 
p2iblic,  is  a  government  in  which  the  sovereign  power  resides 
in  the  people,  but  is  exercised  by  representatives  elected  by 
them  for  that  purpose. 

'  I  De  Martens,  §  24;  Kliiber,  §§         ^  Kluber,  §§  30-35  ;  I  De  Martens, 

30,51,  52;  I  Lorimer,  pp.  208-215;  §§  23-28;  I   Lorimer,  pp.  203-212; 

Creasy,  §§  102-106;  Ortolan,  liv.  i.  Creasy,  §§  ioa-103 ;   I  Pradier-Fo- 

pp.  10-13;  Heffter,  §  16.  dere,  §  125. 

^  I  De  Martens,  §  25  ;  I  Lorimer, 
pp.  211,  2I»s 

5 


34  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

De  Facto  and  De  Jure  Governments.  Governments  are 
again  classified,  according  to  the  opinion  or  belief  of  the  per- 
son using  the  term,  into  governments  de  facto  and  de  jure.  A 
de  facto  government  is  one  actually  existing  in  a  state,  and  for 
the  time  possessing  sufficient  strength  to  exercise  sovereign 
powers.  Thus  the  de  facto  government  in  France,  in  1792, 
was  that  carried  on  by  the  National  Convention.  A  de  jure 
government  is  one  which  the  person  using  the  term  believes  to 
be  the  rightful  government  of  the  state  ;  and  it  may  or  may  not 
be  in  enjoyment  of  the  power  of  sovereignty.  Thus,  in  1792, 
Austria  regarded  the  government  of  Louis  XVI.  as  the  de  jure 
government  of  France.  From  the  stand-point  of  international 
law  the  term  government  is  usually  applied  to  the  de  facto 
government  of  a  state,  and  such  governments  are  generally 
recognized  in  fact,  if  not  in  name.' 

Sovereign  States 

THE  essential  ATTRIBUTES   OF   SOVEREIGNTY 

Sovereign  States.  The  term  "  state "  has  already  been 
defined  as  a  society  of  persons,  organized  for  a  particular  pur- 
pose, and  occupying  a  particular  territory.  Within  the  bound- 
aries of  that  territory  the  power  of  the  state  may  be  absolutely 
supreme,  or  it  may  be  dependent  upon,  or  exercised  in  sub- 
ordination to,  that  of  some  other  state ;  in  both  cases  the 
body  politic  is  a  "  state  "  from  the  point  of  view  of  the  law  of 
nations,  but  it  is  only  in  the  former  case,  however,  that  it  is 
regarded  as  a  sovereign  state.  A  sovereign  state  may  there- 
fore be  defined  as  one  which  retains  and  exercises  in  their 
entirety  its  essential  attributes  of  sovereignty,  which  has  part- 
ed with  none  of  them,  but  retains  them  all  unimpaired.*     In 


'  Creasy,  §§  103-111;  I  Halleck,  ber,  §  21;  Bluntschli,  §  64;   I  De 

chap.  iii.  §  21  ;  Wildman,  p.  57.    See  Martens,  §  23  ;  Bowen,  Int.  Law,  § 

also  the  title,  p.  42,  "Recognition  9;  Wheaton,  part  i.  chap.  i.  §  20 ; 

of  Sovereignty."  Vattel,    liv.    i.  chap.    i.  §  4,    Gro- 

»  I  Halleck,  chap.  iii.  §  i ;   Klu-  tius,  book  i.  chap.  iii.  §  7 ;  Heffter, 


STATES   AND   THEIR    ESSENTIAL    ATTRIBUTES 


this  sense  Russia,  England,  France,  China,  Japan,  and  the 
United  States  are  sovereign  states. 

The  Essential  Attributes  of  a  Sovereign  State.  From 
the  point  of  view  of  international  law,  the  attributes  which  are 
essential  to  the  conception  of  a  sovereign  state  are  three  in 
number — sovereignty,  independence,  and  equality. 

Sovereignty.  The  sovereignty  of  a  state  is  its  inherent 
right  to  assume  and  exercise  jurisdiction  over  all  questions 
arising  within  its  boundaries,  and  to  control  and  regulate  the 
actions  and  legal  relations  of  all  persons  within  its  territorial 
limits.'  This  jurisdiction  —  in  all  cases  not  covered  by  the 
principle  or  fiction  of  exterritoriality,  presently  to  be  explained 
— extends  not  only  to  those  who  occupy  the  status  of  citizens 
or  subjects,  but  includes  all  persons  whatsoever,  whether  aliens 
or  domiciled  strangers,  who,  by  coming  into  the  territories  of 
the  state  are  presumed  to  have  submitted  themselves  to  the 
operation  of  its  laws  during  the  period  of  their  residence  or 
sojourn.'' 


§§  15-25  ;  Pomeroy,  §  51  ;  Manning, 
p.  93;  Westlake,  chap.  vii.  ;  I  Fer- 
guson, §24;  Gallaudet,  p.  62;  Hall, 
§  I  ;  I  Pradier-Fodere.  §§  129-136; 
Wildman,  pp.  38,39;  Ortolan,  liv. 
i.  pp.  10,  II,  A6-48. 

'  Hefifter,  §§  18,26;  Bluntschli, 
§§  64-68;  Kliiber,  §  21  ;  Woolsey, 
§  37  ;  Manning,  pp.  92,  93  ;  I  Hal- 
leck,  chap.  iii.  §§  1-9  ;  Creasy,  pp.  6, 
95.99;  Pomeroy,  §  51. 

"  In  modern  text-books  the  most 
signal  and  decisive  attributes  of  a 
state  are  usually  said  to  be  "  sover- 
eignty "  and  "independence."  A 
formal  distinction  is  not  commonly 
made  between  the  import  of  these 
terms,  though,  from  the  way  in 
"■'^hich  they  are  severally  used,  it 
.Vould  seem  that  the  notion  that 
underlies  them  is  one  of  which  sov- 
ei'eignty  represents  the  positive, 
and  independence  the  negative 
>ide.  The  sovereignty  of  a  state 
IS  its  inherent  capacity  it  enjoys  to 
select,  to  maintain,  or  to  change  its 


own  form  of  government ;  to  ex- 
ercise plenary  civil  and  criminal 
jurisdiction  over  its  own  subjects  ; 
to  alienate  or(subject  to  the  claims 
of  other  states)  to  acquire  terri- 
tory ;  to  make,  with  other  states, 
a  fair  competitive  claim  to  the  use 
of  common  things,  such  as  the 
ocean  and  unoccupied  territory; 
and  to  uphold,  by  every  means  in 
its  power,  the  integrity  of  its  ex- 
istence both  against  external  and 
internal  enemies.  It  is  obvious 
that  the  sovereignty  here  described 
can  only  be  fully  exercised  by  any 
one  state  with  the  practical  concur- 
rence and  co-operation  of  every 
other  state.  Thus  the  positive  en- 
joyment and  exercise  of  sovereign- 
ty implies,  as  its  negative  and  es- 
sential correlative,  independence; 
that  is,  exemption  from  every  spe- 
cies of  interference  on  the  part  of 
other  states.  Manning,  Law  of  Na- 
tions (Amos  ed.),  pp.  92,  93. 


36  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Independence.  The  conception  of  independence  is  in- 
cluded in  that  of  sovereignty,  of  which,  indeed,  it  is  the  neg- 
ative view.  It  involves  an  immunity  from  all  interference 
from  without  in  the  purely  internal  affairs  of  a  state,  and  im- 
plies a  corresponding  obligation  to  abstain  from  similar  inter- 
ference in  the  internal  affairs  of  other  states.* 

Equality.  It  has  been  seen  that  a  state  possesses  a  certain 
number  of  sovereign  rights  and  powers.  These  rights  are  pos- 
sessed in  precisely  the  same  number  and  to  the  same  degree 
by  every  sovereign  state.  This  is  called  the  equality  of  states. 
It  is  not  to  be  inferred  from  this  definition  that  all  states  are 
equal  in  dignity,  importance,  or  power.  It  is  only  asserted 
that  each  state  possesses  the  same  number  of  sovereign  rights 
and  powers,  and  each  to  the  same  degree  that  they  are  pos- 
sessed by  every  other  state.''  For  example :  England  and 
Portugal  have  the  same  right  to  borrow  money,  to  send  am- 
bassadors, and  to  make  treaties  of  alliance.  But  whether  one 
can  borrow  money  at  a  lower  rate  of  interest  than  the  other, 
whether  the  ambassadors  of  both  powers  at  BerHn  have  the 
same  influence,  and  whether  an  alliance  with  one  will  be  as  ad- 
vantageous as  with  the  other,  are  questions  that  depend  upon 
the  financial  resources,  political  influence,  and  military  power 
of  each  state,  all  of  which  are  very  unequal. 


1  Creasy,  §§  95-99;  Pomeroy,  §         '^  I  Halleck.chap.  v.  §§  1,2;  Vattel, 

51;  Manning,    pp.  93-100;   West-  prelim,  chap.  §  18;   Wheaton,  part 

lake,  chap.  vii. ;  I  Lorimer,  pp.  139-  ii.  chap.  iii.  §§  152-160;  Heffter,§§  27, 

154;  I  Twiss,  §§  106,  107;  I  Fergu-  53;  Kliiber,  §  89;  Bluntschli,  §§  81- 

son,  §  28;  I  Halleck,  chap.  iv.  §  i  ;  94 ;   I  De  Martens,  §  125;  Creasy, 

Wheaton,  part  ii.  chap.  i.  §  72;  Klii-  §§  1 19-129;  Pomeroy,  §51;    Man- 

ber,  §§  22,  45-50;  Bluntschli,  §§  64  ning,  pp.  100-102;  Westlake,  chap. 

-67;  I  De  Martens,  §  116;   Vattel,  vii.;  I  Ferguson,  §  29 ;  Gallaudet,  p. 

prelim,  chap.  §  15;  Hall,  §§  8-10;  I  102;  I  Phillimore,  §  147  ;  I  Pradier- 

Phillimore.  §  145  ;   Creasy,  §§  95-  Fodere,  §§  442-461  ;  Ortolan,  liv.  i. 

99;    I  Pradier-Fodere,  §§  287-295;  pp.  51,  52. 
Wildman,  pp.  38,  39;   Ortolan,  liv. 
i.  p.  51 ;  Lawrence,  Int.  Law,  §  70. 


states  and  their  essential  attributes         37 

Dependent  States:  Confederations 

Dependent  States.  A  sovereign  state  has  already  been 
described ;  a  dependent  or  semi-sovereign  state  is  one  which 
has  lost  or  surrendered  some  of  its  essential  attributes  of 
sovereignty,  or  which  was  not  endowed  with  perfect  sov- 
ereign rights  when  it  was  constituted  a  state.  The  Ionian 
Islands,  placed  by  the  Treaty  of  Paris  under  the  protection 
of  Great  Britain,  are  cited  by  Kliiber  as  a  perfect  example 
of  a  semi-sovereign  state.'  In  this  sense  the  Samoan  Islands, 
the  Congo  Free  State,  Egypt,  and  Bulgaria  are  dependent 
states. 

Confederations.  A  confederation  is  an  artificial  state,  re- 
sulting from  the  more  or  less  complete  union  of  two  or  more 
states.  This  involves  the  temporary  or  permanent  surrender 
of  some  sovereign  rights  on  the  part  of  each  of  the  confeder- 
ated states  which  pass  to,  and  are  vested  in,  the  artificial 
state  created  by  the  treaty  of  union,  or  constitution  of 
the  confederacy.  The  number  and  importance  of  the 
sovereign  rights  surrendered  by  the  component  states  will 
determine  the  character  and  strength  of  the  confederacy. 
If  the  powers  surrendered  be  few  and  non-essential,  the 
confederacy  is  said  to  be  weak;  if,  on  the  other  hand,  the 
powers  so  surrendered  be  numerous  and  important,  the  re- 
sulting confederation  is  said  to  be  strong  —  the  strength  or 
weakness  of  the  union  being  determined,  in  every  case,  by  the 
number  and  importance  of  the  rights  vested  in  the  confeder- 
ate government  by  the  treaty  or  compact  which  created  it. 
The  United  States  under  the  Articles  of  Confederation,  the 
Holy  Roman  Empire,  the  Zollverein,  and  the  German  Con- 
federation, as  reorganized  in  i8i5,are  examples  of  loose  con- 
federations. The  present  German  Empire  is  a  stronger  con- 
federation.    The  Swiss  Confederation,  the  union  of  England 


i.  §  7 ;   Vattel,  liv.  i.  chap.  i.  §§  7- 
I  ;  Wheaton,  part  i.  chap.  ii.  §§  34- 

Martens,§§  20-23  ;  I  Halleck,  chap. 

iii-§§  3-9' 17;  Grotius,  book  i. chap. 


-26, 
M 


38       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

and  Scotland,  the  United  States  under  the  present  Constitu- 
tion, are  examples  of  close  political  union/ 

Rule  for  Determining  the  Strength  of  a  Confederation 
or  Union.  Between  these  extremes  there  may  exist  many 
kinds  of  confederacies.  To  determine  the  political  strength 
of  any  particular  confederation  its  constitution  must  be  exam- 
ined, and  an  accurate  account  taken  of  the  powers  surrendered 
and  retained  by  each  component  state.  If  the  power  of  making 
political  treaties,  of  sending  and  receiving  ambassadors,  and  of 
making  war  and  concluding  treaties  of  peace  are  vested  in  the 
central  government,  the  confederacy  is  said  to  be  strong.  If 
a  considerable  number  of  these  powers  are  retained  by  the 
component  states  the  confederation  is  said  to  be  weak.* 

Protectorates.  The  term  "  protectorate  "  is  applied  to  the 
relation  established  between  a  stronger  and  a  weaker  state,  by 
which  the  weaker  is  protected  from  foreign  aggression  and  in- 
terference, but  suffers  in  consequence  some  diminution  of  its 
rights  of  sovereignty  and  independence.  This  relation  is 
established  by  treaty,  by  the  terms  of  which  the  extent  and 
character  of  the  protectorate  are  determined.  In  most  pro- 
tectorates the  foreign  relations  of  the  protected  state,  includ- 
ing the  power  to  engage  in  war,  are  in  great  part  regulated 
by  the  protector.  In  so  far  as  other  nations  are  concerned, 
however,  the  relations  of  the  interested  states  forming  the  pro- 
tectorate are  regarded  as  strictly  internal  in  character ;  "  the 
two  constitute  a  single  system,  possessing  and  exercising  all 
the  powers  which  belong  to  civilized  government,  and  not  sub- 
ject to  the  interference  of  any  third  state  as  to  the  distribu- 
tion of  those  powers,"^  which  is  regulated  by  the  interested 
states  to  the  exclusion  of  all  others.     The  republic  of  San 

'  Wheaton,  part  i.  chap.  ii.  §§  39-  Pomeroy,  §  62  :  Dana's  Wheaton, 

59;    I   Halleck,  chap.  iii.  §§  10-17;  §§44-59:  I  Loriraer,  pp.  182-215. 

Kliiber,  §§  27,  28  ;  Bhintsciili,  §§  70-  '    'WestlaUe,  p.  178;   Ibid.  87-89; 

73;    I    De    Martens,   §§    20,   29;    I  Lawrence,  §§  102-104;    I  De  Mar- 

PhilHmore,  §§   ioa-123;    Creasy,  §§  tens,  §  16  ;  Hall,  §  38,  p.  127;  I  Or- 

140-146;  Ortolan,  liv.  i.  pp.  13-38;  tolan,  pp.  38-45;    I   Halleck,  chap. 

Lawrence,  §§  45-51.  iii.  §  9  ;  Heffter,  §  22,  par.  iv. 

°  Lawrence,  §  45  ;  Woolsey,  §  108; 


STATES   AND    THEIR   ESSENTIAL   ATTRIBUTES  39 

Marino  in  Italy,  and  the  relation  existing  between  France 
and  Tunis  and  England  and  Zanzibar  are  examples  of  pro- 
tectorates in  the  modern  sense  of  the  term.' 


Sovereign  Powers 

nature  and  classification 

Extent  of  Sovereignty.  From  the  definition  of  a  sovereign 
state  it  follows  that  "the  jurisdiction  of  a  nation  within  its 
own  territory  is  necessarily  exclusive  and  absolute.  It  is  sus- 
ceptible of  no  limitation  not  imposed  by  itself.  Any  restric- 
tion upon  it  deriving  validity  from  any  external  source  would 
imply  a  diminution  of  its  sovereignty  to  the  extent  of  the  re- 
striction, and  an  investment  of  that  sovereignty  to  the  same 
extent  in  that  power  which  could  impose  such  restriction.^ 
This  jurisdiction  extends  to  all  subjects  and  over  all  persons 
within  its  territorial  limits,  it  matters  not  whether  those  per- 
sons be  native-born,  or  naturalized  citizens,  or  aliens.  It  in- 
volves the  right  of  maintaining  any  form  of  government,  of 
administering  that  government  in  accordance  with  its  own 
views  and  methods,  and  of  changing  its  form  whenever  such 
a  change  seems  necessary  or  desirable.  It  implies  the  right  of 
classifying  the  sovereign  powers,  and  of  distributing  them 
among  several  departments,  or  of  concentrating  all  of  them 
in  the  hands  of  a  single  ruler  or  sovereign.  It  involves  an 
immunity  from  interference,  from  external  sources,  in  the  en- 
joyment and  exercise  of  its  sovereign  powers,  and  a  corre- 
sponding obligation  to  abstain  from  similar  interference  in 
the  internal  affairs  of  other  states.^ 

'  Westlake,  pp.  177-187  ;  Walker,  20,  21  ;  Vattel,  liv.  i.  chap.  iii.  §§31- 

Manual,  pp.  15,  16,31  ;  Hall,  §  38*,  37;  I  Halleck,  chap.  iv.  §§  1-3,  chap, 

p.   129,  note;    Risley,  p.   39.     For  vii.;  I  Twiss,  §§  157-159 ;  Pomeroy, 

the  meaning  of  the  term  "spheres  §§  166-173. 

of  influence,"  see  the  article  so  en-         ^  Manning,  Law  of  Nations,  pp. 

titled    in  chap,   iii.,  "  Perfect   and  92,   93.      According  to    the    pure 

Imperfect  Rights."  spirit  of  the  law  of  nations,  no  na- 

"  Caseof  the£'ar/^«//^'-i',  7  Cranch,  tion  gives  herself  a  claim  to  call 

116;  Wheaton,  part  i.  chap.  ii.   §§  upon  other  nations  for  a  strict  ob- 


40  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Classification  of  Sovereign  Powers.  The  right  of  sov- 
ereignty is  inherent  in  the  artificial  body  politic  which  we 
call  the  state.  It  is  exercised,  like  other  sovereign  powers, 
through  the  government  of  the  state;  and  the  various  rights 
of  jurisdiction  are  usually  classified  and  distributed  among  the 
different  departments  of  government.  The  jurisdictional  pow- 
ers of  a  state  are  usually  divided  into: 

{a.)  The  Legislative  Department.  In  this  department  is 
vested  the  power  to  make,  alter,  and  repeal  laws.  In  states 
which  recognize  the  people  as  the  ultimate  source  of  sover- 
eignty, this  department  stands  first  in  power  and  importance. 
It  expresses,  more  directly  than  any  other,  the  sovereign  will 
upon  any  question  coming  within  its  jurisdiction.  It  deter- 
mines the  policy  of  the  state  upon  all  matters  internal  and  ex- 
ternal, and  can  change  that  policy  at  will.  At  the  other  ex- 
treme lie  states  in  which  the  sovereign  authority  is  held  to 
reside  in  the  person  of  a  single  ruler  or  sovereign.  Here  the 
legislative  department  does  not  exist,  and  the  powers  usually 
exercised  by  it  are  vested  in  the  hands  of  the  sovereign  or  ex- 
ecutive. 

{b.)  The  Excc2itive Department.  In  this  department  is  vested 
the  power  to  execute  the  laws  and  to  represent  the  state  in 
its  intercourse  with  foreign  powers.  In  states  which  recognize 
the  principle  of  popular  sovereignty  the  executive  himself 
represents  the  people  in  the  exercise  of  that  class  of  govern- 
mental powers  which  has  to  do  with  carrying  the  laws  into 
effect.  He  is  responsible  to  them  for  the  manner  in  which  he 
performs  his  duty;  and,  either  directly  or  through  his  subor- 
dinates, represents  them  in  all  intercourse  with  foreign  powers. 
In  the  exercise  of  the  powers  which  are  peculiar  to  his  office 

servance  of  their  law  who  does  tions,  founded  throughout  on  the 
not  observe  it  strictly  upon  her  own  purest  morahty  and  the  most  ex- 
part,  not  only  in  the  particular  panded  philanthropy,  and  every 
class  of  cases  in  which  she  makes  part  of  it  is  equally  obligatory 
the  call,  but  throughout  the  whole  on  all  nations.  —  Sullivan's  case,  I 
system  of  that  law;  for  that  law  Opinions  of  Attorney-General,  509 
presents  an  entire  system  of  the  [511],  Wirt  (1821). 
relative   rights  and   duties  of  na- 


STATES  AND   THEIR   ESSENTIAL  ATTRIBUTES  4I 

he  is  independent  of  the  other  departments  of  the  govern- 
ment. He  also  represents  in  the  highest  degree  the  dignity 
and  majesty  of  the  state ;  an  insult  to  him  is  an  insult  to  the 
state,  and  attacks  directed  against  his  person  or  authority  are 
usually  given  the  character  of  treason, 

(c.)  Tlic  Judicial  Dcpartiiient.  In  this  department  is  vested 
the  power  to  apply  the  laws  in  the  decision  of  cases  arising 
under  them.  The  jurisdiction  of  the  courts  of  a  state  is  fur- 
ther classified  into  civil  and  criminal.  The  former  extends 
to  the  decision  of  all  suits  or  controversies  in  law  or  equity, 
arising  between  individuals  out  of  contracts,  claims,  and  ser- 
vices, as  well  as  from  torts  and  injuries.  The  latter  includes 
the  power  to  try  and  punish  all  offences  against  the  state  or 
its  sovereign  representative,  or  against  society  or  the  individ- 
uals who  compose  it. 

Exclusive  Jurisdiction,  where  Exercised.  This  right  of 
jurisdiction  is  exclusive  in  all  cases  arising  within  the  territorial 
limits  of  a  state,  or  upon  its  public  or  priv^ate  vessels  on  the 
high  seas.  It  is  of  the  most  comprehensive  character,  and, 
within  the  territorial  limits  as  above  described,  no  offence  can 
be  committed,  no  act  be  done,  no  occasion  arise  for  govern- 
mental interference  of  any  kind  that  will  not  fall  within  the 
jurisdiction  of  some  branch  or  department  of  the  government 
of  the  state,  or  over  which  that  jurisdiction  will  not  be  final 
and  exclusive.' 

Acquisition  and  Loss  of  Sovereignty.  Of  the  states  now 
acknowledged  as  sovereign,  in  the  civilized  world,  some  were 
in  existence  when  international  law  began  to  assume  impor- 
tance as  a  separate  science ;  others  have  since  been  added  to 
the  family  of  states.  A  new  state  may  come  into  being  in  one 
of  two  ways. 

'  The  jurisdiction  of  the  nation  inution  of   its  sovereignty  to  the 

within  its  own  territory  is  necessa-  extent  of  the  restriction,  and  an  in- 

rily  exclusive  and  absolute.     It  is  vestment  of  that  sovereignty  to  the 

susceptible  of  no  limitation  not  im-  same  extent  in  that  power  which 

posed    by    itself.     Any   restriction  could    impose   such    restriction. — ■ 

upon  it,  deriving  validity  from  an  ^zhoon&x  Exchange  vs.  McFadden, 

external  source,  would  imply  a  dim-  7Cranch,  116  [136]. 


42  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

(a.)  By  separation  from  an  existing  state  or  states ;  and  this 
may  be  brought  about:  (i)  By  peaceful  methods,  with  the  con- 
sent of  the  parent  state,  or  with  the  mutual  consent  of  the  states 
from  which  the  new  state  derives  its  territory  and  population ; 
(2)  By  violent  or  hostile  means,  as  by  revolution  or  conquest. 

{d.)  By  the  combination  of  two  or  more  states  into  a  per- 
manent union,  the  component  states  abandoning  their  identity 
completely,  or  surrendering  permanently  most  of  their  sov- 
ereign powers.' 

A  state  may  lose  a  part  or  the  whole  of  its  sovereign  char- 
acter. It  may  lose  its  identity  completely,  by  absorption  in 
another  state  ;  by  peaceful  methods  of  confederation  or  union, 
or  by  the  hostile  methods  of  conquest  or  subjugation.  Sov- 
ereign rights  and  obligations,  however,  can  never  be  destroyed. 
If  they  cease  to  be  exercised  by  one  state  they  pass  with  the 
population  and  territory  into  the  corporate  existence  of  an- 
other, which  assumes  them,  and,  while  enjoying  the  rights, 
must  recognize  and  be  bound  by  the  obligations.^ 

Recognition  of  Sovereignty.  When  a  new  state  comes 
into  being,  in  accordance  with  any  one  of  the  methods  above 
indicated,  it  becomes  an  acknowledged  member  of  the  family 
of  nations  as  a  consequence  of  its  independence  being  recog- 
nized by  states  already  in  existence.  The  question  of  accord- 
ing such  recognition — both  as  to  time  and  method — is  a  mat- 
ter which  each  state  decides  for  itself;  in  some  cases  it  is 
promptly  accorded,  in  others  it  is  delayed,  either  indefinitely, 
or  until  certain  conditions  have  been  fulfilled.  Sooner  or  later, 
however,  the  independence  of  a  state,  being  a  question  of  fact, 
its  separate  and  independent  existence  must  be  recognized,  as 
a  matter  of  fact,  by  the  states  of  the  civilized  world.^ 

'  I  Halleck,  chap.  iii.  §  18  ;  Whea-  ton,    part    i.   chap.   ii.    §§    22-27; 

ton,   part  i.  chap.  ii.  §  21  ;    Hall,  §  Grotius,  book    ii.  chap.  ix.  §  6 ;   I 

26;  I  Phillimore,  §  62;    Creasy,  §§  Phillimore,  §§  124,  125;  Creasy,  §§ 

147-153;   I  Pradier-Fod^re,  §  128;  151,152;  I  Pradier-Fodere,  §§  146- 

Ortolan,    liv.   i.   p.   11;    Revue  de  148  ;  Ortolan,  liv.  i.  pp.  1 1, 12. 

Droit    International,    vol.    xx.    p.  '  I  Halleck,  chap.  iii.  §  22  ;    Hall, 

303;  Kliiber,   §  23;    Lawrence,    §§  §26;  Wheaton,  part  i.  chap.  ii.  §§ 

56-60.  26, 27;  Creasy,  §§  637-643;  I  Lorimer, 

'^  I  Halleck, chap.  iii.  §  23;  Whea-  book  ii.  pp.  93- 152;    I    Ferguson, 


STATES    AND   THEIR    ESSENTIAL   ATTRIBUTES  43 

Right  of  a  State  to  Change  its  Constitution  and  Form  of 
Government.  As  an  incident  of  its  sovereignty  and  inde- 
pendence, a  state  has  a  perfect  right  to  make  such  changes  in 
its  constitution,  government,  and  laws  as  it  may  deem  ex- 
pedient or  desirable ;  and  these  changes  may  be  so  radical  in 
character  as  to  effect  a  complete  change  in  its  form  of  gov- 
ernment. The  position  of  such  a  state  in  international  law  is 
in  no  way  affected  by  such  changes,  so  long  as  they  are  strict- 
ly internal  in  character.  The  new  government  succeeds  to  the 
powers  and  privileges,  and  becomes  responsible  for  the  obli- 
gations, of  the  government  which  has  been  displaced  ;  none 
of  which  are  abrogated,  or  in  any  way  impaired  in  consequence 
of  such  purely  internal  changes.  This  follows  from  the  prin- 
ciple that  a  state  is  a  continuing  body,  capable  of  acquiring 
and  enjoying  rights,  of  exercising  sovereign  powers,  of  incur- 
ring obligations,  and  of  performing  duties.  Of  this  body  politic 
the  government  is  the  agent  or  representative,  and  a  change  of 
government  is,  therefore,  but  a  change  in  the  character  of  this 
agency ;  it  gives  the  state  no  new  powers  or  rights,  and  it  ab- 
solves it  from  none  of  its  duties  or  obligations.  These  ever 
remain  unchanged.* 

chap.  V.  §  24 ;  I  Pradier-Fod^re,  §§  to  intervene  :  Held,  that  the  ques- 

136-145.  TheUnited  States  observe  tion  being  a  political  one,  and  the 

as  their  rule  of  public  law  to  recog-  republic  of  Cuba  not  having  been 

nize  governments  (^/^yVjc/t' and  also  publicly     recognized,    such     claim 

governing  persons  de/ario,  without  could  not  be  allowed. — -The  Hornet, 

scrutiny  of  the  question  of  legiti-  2  Abbott,  35.     See  also  I  Dig.  Int. 

macy  of  origin  or  succession. — VII  Law,  §  70. 

Opinions  of  Attorney-General,  582.         '  Klliber,    §§  51,   52;   Bluntschli, 

When  a  question  arises  with  refer-  §§  39-45  ;  I  De  Martens,  §§  74-78  ; 

ence  to  the  existence  or  validity  of  I  Halleck,  chap.  iii.  §§  19-28  ;  chap, 

an  organization  claiming  to  be  the  iv.  §  2  ;  Wheaton,  part  ii.  chap.  i. 

lawful    government   of    a    foreign  §  72;  Vattel,  liv.  i.  chap.  iii.  §§  31- 

country,  the  courts  are  bound  by  35;  Grotius,  book  ii.  chap.  ix.  §  8; 

the  decision  of  the  executive  power;  I    Kent,   Com.,  pp.  25,  26;   Hall,  § 

such  a  question  is  political  and  not  2;   Creasy,   §§    104-153;   Pomeroy, 

judicial.     The  steamer /A;r;/^/hav-  §§67-75;  I  Lorimer,  book  ii.  chap, 

ing  been   seized  upon   a  charge  of  xii.  ;   I   Phillimore,  §§  126-137,  148, 

violation    of    neutrality,  a    person  149;  I  Pradier-Fodere,  §§  149-163; 

claiming  to  be  the  agent   of  the  Wildman,  p.  68;  II  Dig.  Int.  Law, 

"  republic  of  Cuba  "  having  applied  §§  137,  236,  248. 


44  THE    ELEMENTS   OF    INTERNATIONAL   LAW 


Territory  :  Boundaries 

Territory.  It  has  already  been  seen  that  a  state  must  ex- 
ercise its  sovereign  powers  within  certain  fixed  and  defined 
territorial  limits;  within  those  limits,  as  a  consequence  of  its 
sovereignty  and  independence,  its  authority  and  jurisdiction 
are  supreme,  not  only  over  all  questions  that  can  arise  de- 
manding governmental  interference,  but  as  to  the  acts  of  all 
persons  whether  citizens  or  aliens.  Beyond  its  territorial  limits, 
however,  such  jurisdiction  ceases  and  that  of  another  sovereign 
state  comes  into  operation  and  becomes  paramount.  It  is  thus 
seen  that  sovereignty  and  territory  are  conterminous,  and  that 
the  only  possible  line  of  demarcation  that  can  effectually  sepa- 
rate sovereign  states  is  a  territorial  boundary.  Where  the 
sovereignty  of  one  state  begins  that  of  another  ends.'  The 
territory  of  a  state  may  therefore  be  defined  as  that  portion  of 
the  earth's  surface  which  is  included  within  its  boundaries, 
over  which  it  exercises  jurisdiction,  and  within  which  that 
jurisdiction  is  supreme. 

Boundaries.  The  boundaries  of  a  state  may  be  natural, 
consisting  of  oceans,  seas,  gulfs,  lakes,  or  bays;  or  they  may 
be  artificial,  consisting  of  parallels  of  latitude,  or  meridians  of 
longitude,  or  imaginary  lines  described  in  treaties  by  their 
direction  and  length  between  terminal  points.  They  are  usu- 
ally established  by  accurate  surveys  and  marked  in  position 
by  permanent  monuments.^ 

What  Constitutes  the  Territory  of  a  State.  All  the  land 
and  all  bodies  of  water,  all  inland  seas,  gulfs,  lakes,  rivers,  and 
bays  lying  entirely  within  the  external  boundaries  of  the  state, 

'  Walker,  Manual,  8;  Lawrence,  not  enter  upon  the  territories  of 

Int.  Law,  §§  90-91  ;  Kliiber,  §  128;  another  or  claim  any  right  what- 

Walker,  Science  of  Int.  Law,  p.  43.  ever    therein. — The   Chiriqui    Im- 

The    United    States    Government  provement  Company,  IX  Opinions 

cannot  purchase  a  grant    of   land  of  Attorney-General,  p.  286,  Black 

in,  or  concession  of  a  right  of  way  (1859). 

over,  the  territories  of  another  na-         ^  HefTter,  §  66  ;  I  De  Martens,  §§ 

tion  as  could  an  individual  or  pri-  38,  39,  72;    Kliiber,  §  133;  Hall,  § 

vate  corporation,  since,  by  the  law  38  ;  I  Dig.  Int.  Law,  §  22, 
of  nations,  one  gov^ernment   can- 


STATES   AND    THEIR    ESSENTIAL   ATTRIBUTES  45 

are  portions  of  its  territory,  and,  as  such,  subject  to  its  exclu- 
sive jurisdiction.  All  littoral  islands  belong  to  the  state  to 
which  they  are  adjacent ;  all  gulfs  and  bays,  river  mouths  and 
estuaries  included,  or  almost  included,  by  the  land,  are  also  re- 
garded as  a  part  of  the  territory  of  a  state.  If  the  headlands 
be  remote,  the  rule  of  possession  is  not  yet  fully  determined, 
for  the  reason  that  no  international  understanding  has  as  yet 
been  reached  as  to  the  distance  between  headlands  which  shall 
determine  ownership  and  jurisdiction  in  all  cases.  As  claims  are 
advanced  to  jurisdiction  over  particular  bodies  of  water,  they  are 
usually  adjusted  by  the  states  locally  interested,  and  their  de- 
cision, if  just  and  equitable,  is  acquiesced  in  by  other  nations.' 
In  some  instances  the  changes  are  so  numerous  and  impor- 
tant as  to  have  made  it  necessary  for  the  interested  states  to 
make  provision  for  the  constant  observation  and  supervision 
of  boundary  rivers  by  means  of  permanent  commissions.  This 
is  the  case  in  respect  to  the  Rio  Grande,  which  forms  a  por- 
tion of  the  boundary  between  the  United  States  and  Mexico.'* 


'  Lawrence,  Int.  Law,  §  91  ;  Heff-  piers,  or  other  obstructions,  or  by 

ter,  §  65  ;  Kliiber,  §  129  ;  I  De  Mar-  the  dredghig  of  channels,  shall  not 

tens,  §  72  ;  I  Halleck,  pp.  134-145  ;  be  permitted  to  alter  or  affect  the 

Revue  de  Droit  International,  vol.  dividing  line  as  established  by  the 

xxvi.  pp.  209-214;  Hall,  §§  30-33.  boundary  commission  in  1852  ;  but 

^  The  treaty  of  November  12, 1884,  the   protection    of  the    banks    on 

between   the    United    States   and  either  side  from  erosion  by  revet- 

Mexico,  declares   that   the    boun-  ments  of  stone,  or  other  material 

dary  line  of  the  Rio  Grande  shall  not  projecting  into  the  current  of 

"  follow  the  centre  of  the  normal  the  river,  shall  not  be  deemed  an 

channel,   notwithstanding  any  al-  artificial  change.    Provision  is  also 

terations  in  the  banks  or  course  of  made   in  article   iv.  of  the  treaty 

the  river,  provided  that  such  alter-  for  determining  the  boundary  line 

ations  be  effected  by  natural  causes,  upon  any  bridge  that  has  been  or 

through  the  slow  and  gradual  ero-  may  be  built  across  the  said  river; 

sion  and  deposit  of  alluvium,  and  such   boundary  being   established 

not  by  the  abandonment  of  an  ex-  at  a  point  "exactly  over  the  mid- 

isting  river-bed  and  the  opening  of  die    of   the    main    channel."     The 

a  new  one."     The  treaty  provides  boundary  so  established   is  to  re- 

that   any  other   changes,  whether  main    fixed,  notwithstanding    any 

wrought  by  the  current  in  cutting  subsequent  changes  in  the  channel 

a    new   bed,  or   due    to    artificial  which  may  thereafter  supervene. — 

changes  in   the   navigable   course  Treaties  and  Conventions   of  the 

of  the  river,  in  consequence  of  the  United  States,  1776-1887,  p.  721.    It 

construction     of    bridges,    jetties,  is  a  sound  principle  of  nationallaw, 


46       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Navigable  Rivers.  Where  navigable  rivers  not  only  sepa- 
rate but  also  traverse  the  territory  of  several  states,  the  ques- 
tion of  boundary  is  necessarily  affected  by  considerations  of 
greater  intricacy  and  difficulty  having  to  do  with  their  improve- 
ment and  navigation.'  In  recent  times  the  tendency  has  been 
to  remove  all  restrictions  upon  the  navigation  of  such  rivers, 
and  to  throw  them  open  to  general  commerce.  These  changes 
have  been  effected  by  treaties,  to  which  the  states  interested 
in  the  navigation  of  particular  rivers  have  been  parties.  In  ac- 
cordance with  their  stipulations  uniform  rates  of  toll  have  been 
established,  unnecessary  and  burdensome  charges  have  been 
abolished  or  modified,  and  the  expenses  of  maintenance  and 
improvement  have  been  equitably  assessed  upon  the  riparian 
powers.  To  defray  these  expenses  various  expedients  have 
been  resorted  to.  In  some  of  the  earlier  treaties  the  revenues 
derived  from  tolls  were  appropriated  to  the  purpose.  Later 
treaties  provide  for  an  apportionment  of  the  expense  of  im- 
provement among  the  riparian  powers,  and  for  the  removal  of 
all  restrictions  in  the  way  of  tolls  and  dues  from  the  naviga- 
tion of  the  river.  In  this  way  most  of  the  navigable  rivers  of 
Europe,  that  are  not  entirely  included  within  the  territory  of 
a  single  state,  have  been  thrown  open  to  general  commercial 
use." 

Rivers  as  Boundaries.  Where  a  river  forms  the  boundary 
between  two  states,  the  line  of  demarcation  follows  the  mid- 
channel.  If  the  channel  changes,  there  is  some  difference  of 
opinion  as  to  whether  the  boundary  changes  with  it,  or  re- 

and  applies  to   the  treaty-making  '  In  this  respect  an  important  dif- 

power  of  this  government,  whether  ference  was  made  in  the  Roman 

exercised  with  a  foreign  nation  or  law   between    rivers  and    the   sea. 

an  Indian  tribe,  that  all  questions  The    former  were    regarded   as   a 

of  disputed  boundaries  may  be  set-  portion  of   the  public  property  of 

tied  by  the  parties  to  the  treaty. —  the  state  ;  the  navigation  of  the  lat- 

Lattimer  vs.  Potcet,  XIV  Peters,  p.  ter  was  held  to  be  the  commoti  right 

14;  Heffter.  §66;  I  De  Martens,  §§  of  all.— I  Phillimore,  p.  189. 

38,  39;  Hall,  §§  37,38.    For  a  discus-  ^  For  a  fuller  discussion  of  this 

sion  of  the  neutrality  of  boundary  subject,    see    the    article    entitled 

rivers,  see  Revue  de  Droit  Interna-  River  Navigation,  p.  48;  see  also  I 

tional,  vol.  xviii.  pp.  96-1 59;  see  also  De  Martens,  §  39. 
Ibid.  xix.  p.  253. 


STATES  AND   THEIR   ESSENTIAL  ATTRIBUTES  47 

mains  in  the  ancient  bed.  In  most  cases  that  have  arisen  the 
rules  of  the  Roman  law — in  this  matter  the  simple  embodi- 
ment of  long  experience — have  prevailed  in  the  settlement  of 
disputed  questions  of  boundary.  Those  rules  assume  the  mid- 
channel  of  the  river  as  the  normal  line  of  division.  The  ex- 
perience of  ages,  however,  proves  that  rivers  are  subject  to 
constant  modification,  in  respect  to  their  course  and  direction, 
due  to  changes  in  the  volume  of  their  waters,  the  rapidity  and 
strength  of  their  currents,  and  the  resisting  power  of  the  soil 
or  material  of  which  their  banks  are  composed.  These  changes 
are  attributable  to  two  general  causes  ;  one,  gradual,  due  to  the 
constant  erosive  action  of  the  current,  by  which  soil  is  being 
constantly  taken  from  one  bank  and  deposited  on  the  other; 
the  other,  casual  or  occasional,  due  to  the  sudden  and  violent 
action  of  the  river,  during  a  period  of  unusual  high  water,  in 
which  the  current  cuts  new  channels  for  itself  at  various  points 
of  its  course.  The  rule  in  such  cases  is  based  upon  the  possi- 
bility of  identifying  the  soil  which  has  changed  from  one  bank 
to  the  other.  Soil  lost  by  gradual  erosion,  not  being  capable 
of  subsequent  identification,  becomes  the  property  of  the  state 
upon  whose  territory  it  has  been  deposited  ;  where  the  change 
in  the  channel  has  been  due  to  the  sudden  action  of  the  cur- 
rent, however,  the  land,  being  still  possible  of  identification, 
is  held  to  belong  to  its  original  owner,  and  the  boundary  line 
remains  in  the  ancient  bed.' 

'  When    a    great    river    is    the  V  Wheaton,  p.  374;    Heffter,  §  66. 

boundary  between  two  nations  or  When  a  river  is  the  Hne  of  arcifitt- 

states,  if  the  original  property  is  in  ions  boundary   between    two    na- 

neither  and  there  be  no  convention  tions,  by  a  treaty,  its  natural  chan- 

respecting   it,  each   holds    to    the  nel  so  continues,  notwithstanding 

middle  of  the  stream.     But  where  any  changes  of  its  course  by  accre- 

a  state  which  is  the  original  pro-  tion  or  decretion  of  either  bank; 

prietor  grants  the  territory  on  one  but  if  the  course  be  changed  ab- 

side  only,  it  retains  the  river  with-  ruptly  into  a  new  bed  by  irruption 

in  its  own  domains,  and  the  newly  or  avulsion,  then  the  river-bed  be- 

erected  state  extends  to  the  river  comes  the  boundary. — VIII  Opin- 

only.      In   such    case    the    lower-  ionsof  Attorney-General, p.  175.  In 

water  mark  is  its  boundary,whether  a  controversy  between  the  United 

the  fluctuations  in  the  stream  re-  States  and  a  foreign  sovereign  as  to 

suit  from  tides  or  from  an  annual  boundarythiscourt  must  follow  the 

rise  and  fall. — Handly  vs.  Anthony,  decision  of  that  department  of  the 


48  the  elements  of  international  law 

The  Navigation  of  Boundary  Rivers 

How  Regulated.  The  liberal  methods,  now  so  generally 
applied  in  the  solution  of  questions  having  to  do  with  the 
treatment  of  boundary  rivers,  date  from  the  Congress  and 
treaty  of  Vienna  in  1815.  On  the  few  previous  occasions  in 
which  such  questions  had  been  made  the  subject  of  treaty 
stipulation,  the  right  of  pubhc  navigation,  if  recognized  at  all, 
had  been  hampered  with  needless  and  burdensome  restric- 
tions, originating  in  the  mutual  jealousies  of  the  interested 
■parties,  and  but  little  calculated  to  favor  the  development  of 
commerce  or  to  promote  interstate  intercourse.  The  treaty 
of  Vienna,  however,  inaugurated  a  marked  change  in  this  re- 
gard. The  sixteenth  annexe  of  that  instrument  contains  a 
body  of  fundamental  principles,  in  accordance  with  which 
detailed  rules  were  prepared  by  the  states  locally  interested, 
for  the  regulation  of  navigation  of  six  important  European  riv- 
ers— the  Rhine,  Main,  Moselle,  Neckar,  Meuse,  and  Scheldt. 
The  109th  article  declares  that  these  streams  are  thrown  open 
to  the  commerce  of  all  nations,  from  the  points  where  they  be- 
come navigable  to  the  sea.  At  different  times  between  18 15 
and  1856  arrangements,  conceived  in  the  same  liberal  spirit, 
were  entered  into  with  reference  to  the  Elbe,  Vistula,  Weser, 
and  Po ;  and  in  1835,  by  a  treaty  between  Spain  and  Portu- 
gal, the  navigation  of  the  Douro  was  declared  common  to  the 
subjects  of  both  powers.' 

Case  of  the  Danube.  As  Turkey  was  not  a  party  to  inter- 
national law  at  the  time  of  the  negotiation  of  the  treaty  of 
Vienna,  the  provisions  of  that  instrument  were  not  extended 

government  which  is  intrusted  by  national,  vol.  xi.  p.  363;  vol.  xiii.  p. 

the  Constitution  with  the  care  of  its  187;  vol.  xiv.  p.  122;  vol.  xv.  p.  5; 

foreign  relations,  especially  if  sane-  Ibid.  pp.  340,  437,  547  ;  vol.  xvi.  pp. 

tioned  by  the  legislative  power. —  360,551;  vol.  xviii.  p.  159. 
Foster  vs.  Neilson,  II  Peters,  p.  253.         '  I  Halleck,  pp.  147-151  ;  I  Philli- 

Grotius,  book  vii.  chap,  iii ;  Vattel,  more,  pp.  195-199;  Lawrence,  Int. 

liv.   i.  chap.  xxii. ;  I  De  Martens,  §  Law,  §  112;   Hall,  p.  130;  I  Twiss, 

45  ;  I  Halleck,  p.  146 ;  Kliiber,  §  1 34 ;  §§  149-1 52  ;  Revue  de  Droit  Inter- 

Bluntschli,  §§  29S-300;    I  Dig.  Int.  national,  vol.  xviii.  p.  96  ;  Ibid.  vol. 

Law,  §  30;  Revue  de  Droit  Inter-  xix.  p.  253;  Bluntschli,  §§  313-316. 


STATES  AND   THEIR   ESSENTIAL  ATTRIBUTES  49 

to  the  Danube.  The  first  attempt  to  regulate  the  navigation 
of  that  river  is  found  in  the  treaty  of  Bucharest,  entered  into 
between  Turkey  and  Russia  in  18 12.  By  the  fourth  article  of 
that  treaty  it  was  agreed  that  the  boundary  line  between  the 
two  states  should  follow  the  left  bank  of  the  Danube  from  its 
junction  with  the  Pruth  to  its  mouth  at  Kilia,  on  the  Black 
Sea  ;  and  the  navigation  of  both  rivers  was  declared  to  be  free 
to  the  subjects  of  the  signatory  powers.  The  Danube  enters 
the  Black  Sea  through  three  principal  channels.  The  most 
northern  of  these,  which  is  known  as  the  Kilian  mouth,  carries 
by  far  the  greater  part  of  its  waters  to  the  sea,  and  is  the  one 
best  adapted  to  purposes  of  navigation.  The  central,  or  Su- 
lina  channel,  discharges  but  a  small  part  of  the  volume  of  the 
stream.  The  southern,  or  St.  George's  channel,  carrying  about 
one-third  of  the  volume  of  the  river,  reaches  the  sea,  through 
several  mouths,  at  a  point  about  twenty  English  miles  to  the 
south  of  the  Sulina  channel.  By  the  Treaty  of  Adrianople,  in 
18 1 5,  to  which  Turkey  and  Russia  were  the  contracting  par- 
ties, the  Sulina  mouth,  which  had  been  left  in  the  possession 
of  Turkey  by  the  former  treaty,  was  acquired  by  Russia,  that 
power  binding  itself  to  maintain  its  channel  at  a  sufficient 
depth  to  admit  vessels  at  all  times.  This  stipulation  does  not 
seem  to  have  been  rigidly  observed  by  Russia,  and  its  failure 
to  maintain  a  navigable  channel  was  made  the  subject  of  re- 
monstrance, at  different  times,  by  several  European  powers. 
No  change  was  made  in  the  existing  treaties,  however,  and 
the  question  remained  in  this  condition  until  the  close  of  the 
Crimean  War. 

By  the  treaty  of  Paris,  in  1856,  to  which  instrument  Tur- 
key was  a  signatory  party,  the  Danube  was  placed  upon  the 
same  footing  as  the  other  great  rivers  of  Europe.  A  com- 
mission was  created  for  the  purpose  of  erecting  and  maintain- 
ing such  engineering  works  at  the  mouth  of  the  river  as  were, 
or  might  become,  necessary  in  the  interest  of  navigation.  The 
commission  began  its  labors  in  1857.  The  Sulina  mouth  w^as 
chosen  as  the  one  most  susceptible  of  improvement,  and  suit- 
able works  were  undertaken  for  its  betterment.   The  funds  for 


5o  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

this  purpose  were  supplied  by  Turkey  during  the  years  be- 
tween 1857  and  i860;  from  i860  onward  they  were  obtained 
by  a  tax  levied  upon  all  vessels  entering  the  river.  The  treaty 
of  March  13,  1871,  extended  the  operations  of  the  Danubian 
Commission  for  a  further  period  of  twelve  years;  and  a  new 
and  significant  step  was  taken  by  an  agreement  of  the  powers 
to  a  declaration  guaranteeing  the  permanent  neutrality  of  the 
v/orks  of  improvement  at  the  mouth  of  the  river.' 

The  cases  of  the  Mississippi  and  St.  Lawrence  rivers,  in  the 
United  States,  gave  rise  to  much  controversial  discussion. 

Case  of  the  Mississippi.  The  peace  of  Paris,  in  1763, 
brought  to  a  close  the  long  series  of  wars  for  dominion  be- 
tween England  and  France,  to  which  Spain  had  become  a 
party,  as  an  ally  of  France,  in  1761.  By  the  treaty  of  Paris 
the  Mississippi  River  had  been  recognized  as  the  boundary 
between  the  possessions  of  England  and  France  in  America, 
from  its  source  to  its  junction  with  the  Iberville,  an  eastern 
tributary,  connecting  it  with  the  lake  system  of  its  lower 
basin.  From  that  point  the  boundary  line  followed  the 
course  of  the  Iberville,  through  lakes  Pontchartrain  and  Mau- 
repas,  to  the  Gulf  of  Mexico.  The  line  of  the  Iberville  sep- 
arated Florida  and  Louisiana,  which  were  ceded  by  the  treaty, 
the  former  to  England  and  the  latter  to  Spain,  and  the  right 
of  navigating  the  Mississippi  was  secured  to  the  subjects  of 
Great  Britain  from  its  source  to  the  sea. 

The  treaty  of  peace  between  England  and  the  United  States, 
which  terminated  the  war  of  the  Revolution,  was  signed  on 
September  3,  1783.  On  the  same  day  a  treaty  was  negotiated 
between  England  and  Spain,  by  which  the  provinces  of  East 
and  West  Florida  were  retroceded  to  Spain  ;  thus  giving  to 
Spain  undisputed  control  over  the  lower  waters  of  the  river, 
from  its  mouth  to  its  intersection  by  the  thirty -first  parallel 
of  north  latitude ;  the  course  of  the  river  north  of  that  point 
forming  the  boundary  between  the  United  States  and  the 
French  possessions  in  North  America.     This  state  of  affairs 

1  I  Phillimore,  pp.  198,  199;  For-  1878,  pp.  855-894;  I  Twiss,  §§  151, 
eign  Relations   of  United    States,      152;  Lawrence,  Int.  Law,  §112. 


STATES   AND    THEIR   ESSENTIAL   ATTRIBUTES  5 1 

gave  rise  to  a  controversy  between  Spain  and  the  United 
States,  as  to  the  right  of  citizens  of  the  latter  power  to  navi- 
gate that  part  of  the  river  lying  wholly  within  Spanish  terri- 
tory. 

On  the  part  of  the  United  States  it  was  claimed  that  the 
treaty  of  1763,  between  England  and  Spain,  had  given  to  the 
subjects  of  Great  Britain  the  right  to  navigate  the  river  from 
its  source  to  the  sea.  This  treaty  had,  in  fact,  created  a  terri- 
torial servitude,'  which  had  not  been  extinguished  or  repudi- 
ated by  either  of  the  treaties  of  1763  or  1783.  It  was  fair  to 
presume,  therefore,  that  it  still  existed,  and  that  the  subse- 
quent transfer  of  territory  on  the  east  bank  of  the  river  had 
been  made  subject  to  the  right  of  navigation  which  was  then 
enjoyed  by  the  inhabitants  of  its  upper  waters.  A  provision 
of  the  Roman  law  was  cited  in  behalf  of  the  United  States,  by 
which  all  navigable  rivers  were  held  to  be  "so  far  public  prop- 
erty that  a  free  passage  over  them  was  open  to  everybody, 
and  the  use  of  their  banks  for  the  anchorage  of  vessels,  lading 
and  unlading  cargo,  and  acts  of  the  like  kind,  was  regarded 
as  incapable  of  restriction  by  any  right  of  private  domain."^ 
It  was  also  claimed,  on  the  part  of  the  United  States,  that  the 
Mississippi  River  furnished  the  only  practicable  outlet  to  the 
sea  for  all  the  products  of  the  upper  valley.  The  claim,  based 
upon  this  fact,  was  held  by  the  American  negotiators  to  be  of 
sufificient  importance  to  constitute  a  perfect  right  at  interna- 
tional law.  These  claims  were  rejected  by  Spain,  whose  right 
to  control  the  navigation  of  the  lower  courses  of  the  river  was 
based  upon  the  fact  of  its  territorial  jurisdiction.  The  position 
assumed  by  the  United  States  was  not  regarded  as  a  sound 
one  in  accordance  with  the  provisions  of  international  law  as 
then  understood,  and  the  controversy  was  brought  to  an  end 
by  the  treaty  of  October  20,  1795,  between  the  United  States 
and  Spain.  By  the  terms  of  that  treaty  the  navigation  of  the 
Mississippi  was  to  be  free  to  both  parties  throughout  its  entire 

'  For  a  description  of  servitudes,      stitutes,  lib.  ii.  tit.  i.  §§  1-5  ;  Digest, 
see  p.  68.  lib.  i.  tit.  viii.  §  5. 

^  I  Phillimore,  p.  189,  §  155;  In- 


52  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

extent.  The  Americans  were  to  enjoy  a  right  of  deposit  at 
New  Orleans  for  three  years,  at  the  end  of  which  period  either 
that  privilege  was  to  be  continued,  or  an  equivalent  establish- 
ment was  to  be  assigned  them  at  some  other  convenient  point 
on  the  banks  of  the  Lower  Mississippi.'  The  question  of 
navigating  this  important  stream  was  finally  settled  by  the 
purchase  of  Louisiana,  in  1803,  ^"^  of  Florida  in  1819,  which 
placed  the  river  for  its  entire  length  within  the  territorial  juris- 
diction of  the  United  States. 

Case  of  the  St.  Laiurcnce. — The  case  of  the  St.  Lawrence 
presents  many  considerations  similar  in  character  to  those  dis- 
cussed in  the  case  of  the  Mississippi.  Its  navigation  was  a 
matter  of  great  importance  to  the  United  States  for  the  rea- 
son that  it  furnished,  at  that  time,  the  only  outlet  to  the  sea 
for  commerce  originating  in  the  great  lake  system  of  North 
America.  These  lakes,  with  the  exception  of  Lake  Michigan, 
which  lies  wholly  within  the  territory  of  the  United  States, 
lie  upon,  and  form  a  part  of,  the  boundary  between  the  United 
States  and  the  British  possessions  in  North  America.  From 
the  head  of  Lake  Superior  to  the  source  of  the  St.  Lawrence 
in  Lake  Ontario,  and  along  the  course  of  that  river  to  its  in- 
tersection by  the  northern  boundary  of  the  United  States, 
the  right  of  navigation  was  determined,  beyond  question,  by 
the  universally  accepted  rules  of  international  law,  and  be- 
longed jointly  to  the  two  powers.  The  lower  course  of  the 
river,  from  its  intersection  by  the  forty-fifth  parallel  of  north 
latitude  to  its  mouth  in  the  Gulf  of  St.  Lawrence,  lay  entirely 
within  the  British  territor}^  The  question  between  the  two 
governments,  therefore,  had  exclusively  to  do  with  the  right 
of  navigation  of  the  British,  or  lower,  section  of  the  river. 

On  the  part  of  the  United  States  it  was  contended,  as  in 
the  case  of  the  Mississippi,  that,  as  the  lower  course  of  the 
river  lormed  the  only  outlet  for  commerce  arising  in  a  large 
portion  of  the  territory  of  the  United  States  which  lay  upon 
the  upper  lakes,  its  navigation  became  a  perfect  right  at  inter- 

'  Hildreth,  History  of  the  United  Conventions  of  the  United  States, 
States,  vol.  iv.  p.  569;  Treaties  and      1 789-1 887,  pp.  1007, 10 17. 


STATES   AND   THEIR    ESSENTIAL   ATTRIBUTES  53 

national  law,  and  could  be  claimed,  as  a  matter  of  necessity, 
by  the  state  whose  territory  lay  upon  its  upper  waters.  The 
right  of  navigating  the  Mississippi,  stipulated  for  by  England 
in  a  precisely  similar  case,  was  cited  by  the  United  States  Gov- 
ernment in  support  oi  its  view,  as  was  the  action  of  the  Con- 
gress of  Vienna,  to  which  England  had  been  a  party,  in  throw- 
ing open  a  number  of  European  rivers  to  general  navigation 
in  cases  similar  to  those  of  the  St.  Lawrence  and  Mississippi. 
It  was  also  contended,  in  behalf  of  the  United  States,  that,  on 
account  of  the  character  and  importance  of  the  bodies  of 
water  connected  by  it,  the  St.  Lawrence  should  be  regarded 
as  a  strait  rather  than  as  a  river,  and  that  the  question  of  its 
navigation  should  be  determined,  as  in  the  case  of  straits, 
rather  by  the  right  to  navigate  the  bodies  of  water  connected 
by  it  than  by  the  ownership  of  the  banks  along  its  lower 
course. 

On  the  part  of  Great  Britain  the  validity  of  the  first  of  the 
positions  assumed  by  the  United  States  was  denied,  as  not 
warranted  by  international  law.  The  contention  was  also 
made  that,  wherever  such  concessions  had  been  granted,  they 
had  been  based  upon  treaty  stipulations.  The  liberal  arrange- 
ments in  regard  to  the  joint  or  general  right  of  river  naviga- 
tion made  by  the  Congress  of  Vienna,  and  recognized  in  sub- 
sequent treaties,  were  based  upon  the  conventional  law  of  na- 
tions, and  could  be  withdrawn  or  modified  at  any  time.  To 
the  second  claim,  that  the  river  should  be  regarded  as  a  strait, 
it  was  replied  that  the  application  of  such  a  rule  must  be  gen- 
eral and  international,  and  not  local  and  particular.  If  it  ap- 
plied to  the  case  of  the  St.  Lawrence,  it  applied  with  equal 
force  to  the  Hudson  and  Mississippi,  and  to  the  artificial  chan- 
nels in  New  York  and  Ohio  which  formed  a  part  of  the  line  of 
water  communication  between  the  great  lakes  and  the  sea. 
Unless,  therefore,  the  United  States  was  prepared  to  open 
these  artificial  channels  to  general  navigation,  the  British  Gov- 
ernment must  decline  to  so  regard  that  portion  of  the  St.  Law- 
rence which  lay  entirely  within  its  territorial  jurisdiction.  The 
discussion,  though  ably  conducted  on  both   sides,  led  to  iio 


54  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

results  of  immediate  or  practical  importance.  The  question 
of  navigation  was  settled  by  the  reciprocity  treaty  of  1854; 
by  which,  in  consideration  of  certain  concessions  to  British 
subjects  in  the  matter  of  navigating  Lake  Michigan,  the  right 
of  navigation  of  the  St.  Lawrence  and  the  Canadian  canals, 
forming  a  part  of  the  system  of  communication  between  the 
great  lakes  and  the  sea,  was  conceded  to  citizens  of  the  United 
States.' 

In  this  connection  it  is  well  to  observe  that  the  concessions 
thus  far  obtained  in  the  matter  of  throwing  open  rivers  to  gen- 
eral navigation,  however  liberal  they  may  have  been,  are  all 
of  them  based  upon  treaty  stipulations.  In  none  of  these 
treaties  is  the  question  treated  as  one  amending  or  modifying 
the  existing  rules  of  international  law  upon  the  subject  of 
river  navigation.  Such  boundary  rivers,  therefore,  as  have  not 
thus  far  been  made  the  subject  of  treaty  stipulation,  are  sub- 
ject, in  all  questions  affecting  their  ownership  and  navigation, 
to  the  rules  of  international  law  as  they  existed  in  1815-  No 
claim  can  be  advanced  to  their  navigation  based  upon  the 
treaties  above  referred  to,  as  none  of  them  have  changed  or 
amended  the  existing  rules  of  international  law.* 

^      The  Marine  League:  The  Three-mile  Limit 

Jurisdiction  over  a  Portion  of  Coast  Sea.  Although  the 
strict  territorial  jurisdiction  of  a  state  ends  at  the  low-water 
mark,  where  the  high  seas  begin,  its  claim  to  exercise  jurisdic- 


'  Many  of  the  navigable  rivers  of  203-205,  note  119.     See  also  I  Dig. 

South  America  have  been  thrown  Int.  Law,  §§  30,  72;  III  Ibid.  §  302; 

open  to  general  navigation  (I  Phil-  I  Phillimore,   pp.  33,  203;    Hall,  § 

limore,  p.  209;  Lawrence's  Whea-  39;  Woolsey,  p.  62;  Lawrence,  Int. 

ton,  pp.  362-365).     For  a  full  dis-  Law,  §  112;  I  Twiss,  §§  145-156;  I 

cussion  of  the  controversy  between  De  Martens,  §  39;  Dana's  Wheaton, 

England  and  the  United  States  on  §§  200-203. 

the  subject  of  the  St.  Lawrence,  see  ^  La  Liberte  de  la  Navigation  Flu- 

I  Phillimore,  pp.  204-209;  Boyd's  viale,  fldouard  Engelhardt,  Revue 

Wheaton,  pp.  266-270;  Lawrence's  de  Droit  International  (1872),  vol, 

Wheaton,  pp.  356-362 ;    I  Halleck  xi.  p.  363. 
pp.  150-152;    Dana's   Wheaton,  §§ 


STATES   AND   THEIR    ESSENTIAL   ATTRIBUTES  55 

tion  over  a  strip  or  belt  of  the  adjacent  sea,  three  miles  in 
width,  has  long  been  generally  recognized.  Over  this  belt  of 
coast  sea,  called  the  marine  league,  a  state  is  acknowledged 
to  have  complete  jurisdiction  as  against  other  states  ;  whether 
its  courts  can  assume  jurisdiction  over  it  or  not  will  depend 
upon  its  municipal  laws.  This  peculiar  jurisdiction  is  acknowl- 
edged to  guarantee  immunity  from  acts  of  belligerency  be- 
tween ships  of  nations  other  than  that  to  which  the  coast  sea 
belongs ;  to  enable  a  state  to  carry  into  effect  its  maritime 
laws  and  customs  regulations ;  to  secure  protection  to  the  in- 
habitants of  the  coast — especially  to  those  engaged  in  coast 
fisheries,  and  to  provide  for  an  adequate  system  of  coast  de- 
fence. As  one  of  the  chief  reasons  for  recognizing  jurisdic- 
tion over  the  three-mile  limit  has  to  do  with  questions  of  sea- 
coast  defence,  it  seems  proper  that  the  width  of  this  zone 
should  increase  as  the  range  of  modern  artillery  increases.' 
A  ship  entering  or  passing  through  this  strip  of  coast  sea, 
in  the  prosecution  of  a  voyage,  is  not  regarded  as  having  en- 
tered the  territory  of  the  adjacent  state;  nor  is  it  subject  to 
the  rules  of  navigation  which  are  sanctioned  by  that  state  and 
enforced  against  its  own  shipping. 

The  municipal  laws  of  many  states  also  assume  a  limited 
jurisdiction  over  a  wider  zone  of  coast  sea  in  defining  offences 
against  their  revenue  laws.  This  right  has  never  been  gener- 
ally recognized,  however,  and  is  only  assumed  or  authorized" 
for  fiscal  and  defensive  purposes.^ 

'Ortolan,  in  his  Diplomatie  de  eroy,  §150;  Bluntschli,  §  303;  Heff- 

la  Mer,  liv.  ii.  chap,  viii.,  and  Hal-  ter,  §§  75-76;    I    Hautefeuille,  pp. 

leek,  chap.  vi.  §  13,  advocate  this  89-92;   I   Phillimore,  pp.  235-237; 

view.    For  an  opposite  opinion,  see  Lawrence,  Int.  Law,  §  107  ;  I  Twiss, 

Boyd's  Wheaton,  p.  239.     See  also  §  190. 

Dana's  Wheaton,  §§  189,  432;  Hall,  ^  The  government  of  Spain  has, 

§  41  ;    I    Phillimore,  pp.  235-242;  from  time  to  time,  asserted  a  claim 

Lawrence,   Int.  Law,  §  107;  I  Or-  to  jurisdiction  over  the  sea  within 

tolan,  pp.    152-162;    Bluntschli,  §§  two  leagues  (six  nautical  miles)  of 

302-303;  Kliiber,  §§  130-131;  I  De  its  coast.    The  claim  is  based  upon 

Martens,  §§  40,  41  ;  I   Hautefeuille,  a  royal  cedula  of  December  17, 1774, 

pp.  89-92;  Hefifter,  §§  74-76;  I  Dig.  which   was   supported  by  a   royal 

Int.  Law,  §§  26,  30,  32.  decree  of  May  i,  1775,  and  by  ar- 

M  Halleck,  pp.  135,  138;  Pom-  tide  xv.  of  the  royal  decree  of  May 


56  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

Case  of  the  '^  Franconiay  Considerable  light  has  been 
thrown  upon  the  exact  character  and  extent  of  the  jurisdiction 
of  a  state  over  the  sea  included  within  the  three-mile  limit  by 
the  case  of  the  Franconia}  The  Franconia  was  a  German  steam- 
er, commanded  by  Keyn,  a  foreigner,  which,  in  the  prosecution 
of  a  foreign  voyage,  passed  within  three  miles  of  the  English 
coast.  While  within  the  three-mile  limit  the  Franconia  col- 
lided with  an  English  vessel  and  sunk  her,  causing  the  death 
of  one  of  her  passengers.  Some  time  later  Captain  Keyn  came 
within  English  jurisdiction,  and  was  arrested  and  tried  for 
manslaughter.  He  was  convicted  of  that  offence  in  the  Cen- 
tral Criminal  Court,  but  his  case  was  carried  up,  on  a  question 
of  jurisdiction,  to  the  Court  of  Crown  Cases  Reserved.  It  was 
there  held  by  a  majority  of  the  judges  that,  in  so  far  as  the  court 
that  had  tried  Keyn  was  concerned,  the  crime  had  been  com- 
mitted upon  a  foreign  ship,  on  the  high  seas,  and  in  the  prose- 
cution of  a  foreign  voyage.  The  Central  Criminal  Court,  there- 
fore, had  no  jurisdiction  in  the  case.  The  view  of  the  majority 
was,  that  in  so  far  as  other  states  were  concerned,  England  had 
jurisdiction,  for  all  purposes,  over  that  portion  of  the  high  seas 
included  within  the  three-mile  limit ;  but,  as  the  law  of  Eng- 
land stood  at  that  time,  jurisdiction  over  crimes  committed 
within  that  limit  had  not  been  conferred  by  Parliament  upon 
any  of  the  courts  of  the  kingdom.  Their  criminal  jurisdiction 
ended  at  the  low-water  mark,  and  crimes  beyond  that  limit 
were  therefore  committed  out  of  their  jurisdiction.^ 

3,1850.  The  claim  was  last  asserted  by  Great   Britain  in   an  identical 

on  August  4,  1874,  by  the  Spanish  communication    dated    September 

Minister  in  London,  in  a  communi-  25,  1874. — Foreign  Relations  of  the 

cation  to  the  Secretary  for  Foreign  United  States,  1875,  p.  641. 

Affairs ;  to  which  reply  was  made  '  Regina  vs.  Keyn,  L.  R.  2  Exch. 

by  the    British    Government    that  Div.  pp.  63,  202-205. 

it  had  strenuously  and   uniformly  ^  Soon  after  this  decision  was  an- 

resisted  the  pretension  of  the  Span-  nounced.   Parliament,  by  the  Ter- 

ish  Gov^ernment  to  an  exercise  of  ritorial  Waters  Jurisdiction  Act  (40 

jurisdiction  beyond  the  distance  of  and  41  Vic.  chap.  Ixxiii.)  assumed 

a  marine  league  from  the  coast  of  jurisdiction  over  the  coast  sea  to 

Spain.     With  a  view  to  ascertain  the  distance  of   a   marine  league, 

the  views  of  other   governments,  and  bestowed  it  upon  the  Courts 

the  matter  was  submitted  to  them  of  Admiralty.    This  was  done  with 


states  and  their  essential  attributes         57 

The  High  Seas 

Extent  and  Use.  This  term  is  applied  to  the  general  ocean 
surface  of  the  globe.  It  begins  at  the  low-water  mark,  where, 
by  legal  presumption,  the  land  is  held  to  end.'  Upon  the  high 
seas  all  nations  have  equal  rights.  The  privilege  of  sailing 
over  them  or  of  fishing  in  them,  beyond  the  three-mile  limit, 
belongs  equally  to  all.  No  state  can  include  them  within  its 
territory,  or  extend  its  dominion  over  them,  or  exercise  exclu- 
sive jurisdiction  over  the  whole  or  any  part  of  the  high  seas.° 

The  doctrine  of  the  absolute  freedom  of  the  high  seas  is  of 
relatively  recent  growth.  In  former  times  claims  were  made 
to  exclusive  jurisdiction  over  large  portions  of  the  sea,  but  none 
of  them  are  now  maintained. 

Claims  to  Exclusive  Dominion,  In  the  early  part  of  the 
sixteenth  century  extravagant  claims  to  dominion  were  ad- 
vanced by  Spain  and  Portugal,  based  upon  their  maritime 
discoveries.  As  these  claims  were  of  the  most  conflicting 
character,  a  controversy  arose,  which  was  submitted  to  Pope 
Alexander  VI.  for  decision.  He  decreed  that  all  those  parts 
of  the  world  which  were  not  then  in  the  secure  possession  of 
any  Christian  prince  should  be  divided  between  Spain  and  Por- 
tugal. ^     A  meridian  line  was  established  through  a  point  one 

a    proviso    that    "no    proceeding  are  subject  to  the  ebb  and  flow  of 

should  be  had  in  any  case  under  the  tide,  and   of   lands  under  the 

the  act  unless  with  the  consent  of  sea,  so  far  as  such  lands  are  sus- 

one  of  her  Majesty's  secretaries  of  ceptible  of  being  made  the  subject 

state,  and   on    his  certificate   that  of  proprietorship,  being  vested  in 

the  institution  of  the  proceedings  the  state  which  they  adjoin.     Like 

is,  in  his  opinion,  necessary."    This  other  lands  or  property  interests  of 

reservation  was  doubtless  intended  the   state,  however,  they  may  be 

to  prevent  a  conflict  between  the  made  the  subject  of  grants  by  the 

executive  and  judicial  departments  state  to  which  they  pertain, 

of  the  government  in  the  event  of  M  Ortolan,  p.    125;    I    Halleck, 

a  case  arising  under  the  act  of  such  chap.  vi.  §   13;    I    Phillimore,  pp. 

a  nature  as  to  involve  considera-  209-213;  Lawrence,  Int.  Law,  §  105  ; 

tionsof  an  international  character.  Heffter,  §  73;  I  De  iNIartens,  §§  42, 

'  In  accordance  with  the  munici-  43;  I  Twiss,  §§  172-176,  185;  Dana's 

pal    law    of    most    states,    private  Wheaton,  §    193;    Kliiber,  §§  130- 

ownership    ceases   at    high  -  water  132;  Pomeroy,  §  158  ;  Vattel,  liv.  i. 

mark;  the  ownership  of  lands  be-  chap,  xxiii.  §§  280-283. 

tween  high  and  low  water,  which  ^  See  p.  14. 


58       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

hundred  leagues  west  of  the  Azores,  as  a  boundary  be- 
tween the  possessions  of  the  two  powers  ;  all  the  territory  to 
the  west  of  that  line  was  decreed  to  Spain,  and  all  to  the  east 
of  the  same  line  to  Portugal.  Under  this  authority,  which 
seems  to  have  had  international  recognition,  Portugal  forbade 
all  commerce  with  the  East  Indies  and  the  west  coast  of  Africa  ; 
Spain,  claiming  the  Pacific  Ocean  and  the  Caribbean  Sea  as 
Spanish  territory,  forbade  all  commerce  with  Mexico,  the  west 
coasts  of  North  and  South  America,  and  the  islands  of  the 
Pacific' 

England  at  one  time  claimed  that  its  jurisdiction  over  the 
narrow  seas  ended  at  the  coast  of  France  and  the  Netherlands. 
This  claim  was  resisted,  especially  by  the  Dutch,  and  so  suc- 
cessfully that  it  was  largely  reduced  in  importance,  and,  at  the 
close  of  the  seventeenth  century,  finally  abandoned.  Russia, 
in  1822,  laid  claim  to  exclusive  jurisdiction  over  that  part  of 
the  Pacific  Ocean  lying  north  of  the  fifty-first  degree  of  north 
latitude,  on  the  ground  that  it  possessed  the  shores  of  that 
sea,  on  both  continents,  beyond  that  limit,  and  so  had  the 
right  to  restrict  commerce  with  the  coast  inhabitants.  Eng- 
land and  the  United  States  entered  vigorous  protests  against 
the  right  of  jurisdiction  thus  asserted  by  Russia,  as  being  con- 
trary to  the  principles  of  international  law,  and  the  claim  was 
formally  withdrawn  in  1824.'' 

Jurisdiction  over  Closed  Seas.  The  question  of  jurisdic- 
tion over  many  such  partly  included  bodies  of  water,  some- 
times called  closed  seas,  has  already  been  decided.  The  Chesa- 
peake and  Delaware  bays  are  recognized  as  parts  of  the  terri- 
tory of  the  United  States;  Hudson  Bay  and  the  Irish  Sea  as 
British  territory  ;  the  Caspian  Sea  belongs  to  Russia,  Lake 
Michigan  to  the  United  States.     The  Black  Sea,  before  Rus- 

'  See  p.  14;   Ha'.i,  pp.  141,  142;  1878,  pp.  354,  355;  Ibid.  1880,  pp. 

Heffter,  §§  73-77.  468-472,   521.  522;   Ibid.  1894,  pp. 

M  Phillimore,  pp.  213-217;  I  Hal-  47,  217,  260,  261  ;  Ibid.  1895,  part  i. 

leek,  pp.  141-145;  Hall,  §  40.     For  pp.  683-686.     See  also   Lawrence, 

correspondence,  etc.,  in  respect  to  Int.   Law,  §§  105-109;    I  Twiss,  §§ 

therulesof  the  roadat  sea,  see  For-  179-191;  Pomeroy,  §§  144-157. 
eign  Relations  of  the  United  States, 


STATES   AND   THEIR    ESSENTIAL   ATTRIBUTES  59 

sia  obtained  a  foothold  upon  it,  formed  part  of  the  territories 
of  the  Ottoman  Porte;  it  is  now  subject  to  the  joint  jurisdic- 
tion of  Turkey  and  Russia.  The  Baltic  is  acknowledged  to 
have  the  character  of  a  closed  sea  (and  to  be  subject  to  the 
control  of  the  powers  surrounding  it),  certainly  to  the  extent 
of  guaranteeing  it  against  acts  of  belligerency  when  the  pow- 
ers within  whose  territory  it  lies  are  at  peace.' 

Rights  of  Ownership  and  Jurisdiction  in  the  Case  of 
Straits;  Innocent  Passage.  The  rights  of  possession  and 
jurisdiction  in  the  case  of  narrow  straits  depend  upon  the 
ownership  of  the  territory  separated  by  them.  The  right  of 
navigating  them  depends  upon  the  character  of  the  bodies  of 
water  which  they  connect.  If  the  connected  seas  are  open  to 
general  commercial  navigation,  the  right  extends  to,  and  in- 
cludes, the  use  of  the  strait  as  a  necessary  means  of  communi- 
cation.' This  is  sometimes  called  the  right  of  innocent  passage. 
The  Strait  of  Gibraltar  is  free,  because  the  Atlantic  Ocean  and 
Mediterranean  Sea  are  open  to  the  commerce  of  all  nations. 
A  similar  rule  applies  to  the  Bosporus,  the  Sea  of  Marmora, 
and  the  Dardanelles,  connecting  the  Black  and  Mediterranean 
seas,  subject  to  the  restrictions  upon  the  passage  of  war  ves- 
sels which  are  contained  in  the  treaties  of  1856,  1871,  and 
1878. 

If  the  territory  separated  by  the  waters  of  a  narrow  strait 
belongs  to  a  single  state,  the  rights  of  civil  and  criminal  juris- 
diction over  the  separating  strait  are  conceded  to  belong  to 
the  owner  of  the  territory.  The  Strait  of  Messina,  separating 
the  island  of  Sicily  from  the  Italian  main -land,  belongs  to 
Italy,  the  Bosporus   and  Dardanelles  to  Turkey,  the  Great 

'  Hall,  §  42 ;  Lawrence,  §§  106-  (Edouard  Engelhardt).  See  also  I 
109;  Dana's  Wheaton,  §§  178,  179,  Twiss,  §§  180-182;  I  Ortolan,  p.151. 
note  105  ;  I  Halleck,  pp.  139-145  ;  I  ^  Vattel,  liv.  i.  chap,  xxiii.  §  292  ; 
Phillimore,  pp.  209-217,  235-242.  I  Phillimore,  pp,  224-227.  The 
For  a  discussion  of  the  right  of  Strait  of  Magellan  was  neutral- 
property  in  the  Bering  Sea,  see  ized  and  thrown  open  to  the  use  of 
the  Revue  de  Droit  International,  all  nations  in  1879.— Foreign  Rela- 
vol.  XXV.  pp.  417-466  (Th.  Bar-  tions  of  the  United  States,  1879,  p. 
clay).      Ibid.    xxvi.    pp.    386,    401  23. 


6o        THE  ELEMENTS  OF  INTERNATIONAL  LAW 

and  Little  Belt  and  the  Sound  to  Denmark.  If  the  territory- 
separated  by  the  waters  of  the  strait  belongs  to  different  states, 
the  strait  belongs  in  part  to  each  power.  The  line  of  demar- 
cation is  determined  as  in  the  case  of  boundary  rivers,  and 
the  jurisdiction  of  the  adjacent  states  is  separated  in  the  same 
manner.' 

The  Danish  Sound  Dues.  The  peculiar  claim  of  Den- 
mark to  jurisdiction  over  the  strait  connecting  the  North  and 
Baltic  seas  was  long  a  fruitful  source  of  complaint  to  all  com- 
mercial nations.  These  claims  were  exercised  in  the  form  of 
a  toll  or  tax,  called  Sound  Dues,  levied  upon  all  shipping 
which  passed  through  the  strait  in  either  direction.  They  were 
based,  in  part,  upon  immemorial  prescription,  and  in  part  upon 
the  expense  incurred  by  Denmark  in  the  maintenance  of  lights 
and  buoys  in  the  narrow  and  dangerous  passage. 

The  question  of  the  sound  dues  was  settled  in   1857  by  a 

^  treaty  entered  into  between  Denmark  and  the  great  Euro- 
pean powers.  "  The  right  of  Denmark  to  levy  these  dues  was 
not  distinctly  recognized,  but  compensation  was  made  to  her 

^  by  the  pa3^ment  of  a  capital  sum,  on  the  ground  of  indemnity 
for  maintaining  lights  and  buoys,  which  Denmark  stipulated 

^  to  maintain  and  levy  no  further  duties."  As  the  treaty  of 
1857  dealt  with  other  questions,  of  strictly  European  concern, 
to  which  the  United  States  was  unwilling  to  become  a  party, 


1 


n> 


4 


\i    a  separate  treaty  was  entered  into  between  that  power  and 
^    Denmark  by  which,  in  consideration  of  the  payment  of  a  lump 
sum,  the  shipping  of  the  United  States  was  to  be  exempted 
from  similar  levies  in  the  future.^ 

Fishery  in  the  High  Seas.  From  the  principle  of  the 
freedom  of  the  high  seas  it  follows  that  the  right  to  fish  in 
their  waters  is  free  to  all  mankind,  and  is  subject  to  restriction 
or  regulation,  in  the  case  of  an  individual,  only  by  the  munici- 

'  I  Twiss,  §§  183-189;  I  Ortolan,  Wheaton,  §§  181 -190;  I  Dig.  Int. 
pp.  146-150;    Hall,  §  41;   Kluber,      Law,  §  29. 

§§130,131;  I  De  Martens,  §  40;  I  ^  I  Phillimore,   pp.  216,   217;    I 

Phillimore,   pp.   218-234;    Dana's      Twiss,§i88;  I  Dig.  Int.  Law,  §  29; 

I  Ortolan,  pp.  147-150. 


STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES 


6l 


pal  law  of  the  state  of  which  he  is  a  citizen.  Not  only  are 
the  high  seas  free  for  purposes  of  fishery  at  all  times  and  in  all 
places,  but  the  rules  of  international  law  make  a  humane  ex- 
ception from  capture  in  behalf  of  fishing-boats  of  a  belligerent 
while  engaged  in  their  legitimate  pursuit  in  the  territorial 
waters  of  the  state  under  whose  flag  they  sail.' 

Coast  Fisheries.  The  privilege  of  fishery,  however,  within 
the  three-mile  limit,  is  universally  recognized  as  a  right  of 
property  which  is  vested  in  the  state  to  whose  territory  the 
waters  are  adjacent,  and  is  in  all  respects  subject  to  its  regu- 
lation and  control.^ 

Piracy.  Piracy  is  an  offence  against  the  law  of  nations, 
and  may  be  defined  as  robbery  committed  upon  the  high  seas. 
As  pirates  are  regarded  as  the  enemies  of  all  mankind,  and 
as  the  offence  of  piracy  is  committed  in  a  place  over  which 
no  state  has  exclusive  jurisdiction,  pirates  may  be  apprehend- 
ed by  the  public  armed  vessels  of  any  nation  ;  and  persons 
charged  with  piracy  may  be  tried,  whatever  their  nationality, 
by  the  courts  of  the  state  to  which  such  capturing  vessel  be- 
longs.'    The  punishment  of  piracy  is  death.     The  definition 


'  Hall,  §§  14,  40-42  ;  I  Philliinore, 
pp.  211,235;  Lawrence,  Int.  Law,  §§ 
105-106;  Maine,  Int.  Law,  p.  76; 
Heffter,  §73;  Kliiber,  §  132;  Orto- 
lan, torn.  i.  chap.  vii. ;  Creasy,  §  243. 

'  I  Twiss,  p.  312;  II  Halleck,  p. 
151 ;  Azuni,  torn.  i. chap.  iii.  art.  viii.; 
II  Ferguson,  §  212;  Heffter,  §  137; 
II  Calvo,  §  932;  II  Ortolan,  p.  51. 
For  an  account  of  the  controversy 
between  England  and  the  United 
States  in  respect  to  the  Canadian 
fisheries,  see  Hall,  §  27  ;  Lawrence's 
Wheaton,  pp.  323-326,  note ;  Dana's 
Wheaton,  §§  268-274,  notes  no, 
142 ;  Creasy,  §  243.  For  an  account 
of  the  controversy  between  the 
same  powers  in  respect  to  the  seal 
fisheries  in  the  Bering  Sea,  see 
Lawrence,  Int.  Law,  §  106. 

®  Dana's  Wheaton,  §§  122-124, 
note  83;  United  States  vs.  Smith, 


5  Wheaton,  157  ;  I  Halleck,  pp.  49, 
192,  396,  note  ;  Risley,  p.  47.  Piracy 
is  defined  by  the  law  of  nations  to 
be  a  forcible  depredation  upon  prop- 
erty on  the  high  seas,  without  law- 
ful authority,  done  anijiio  furandi; 
that  is,  as  defined,  in  this  connec- 
tion, in  a  spirit  and  intention  of 
universal  hostility.  A  pirate  is 
said  to  be  one  who  roves  the  sea  in 
an  armed  vessel,  without  any  com- 
mission from  any  sovereign  state, 
on  his  own  authority,  and  for  the 
purpose  of  seizing  by  force  and  ap- 
propriating to  himself,  without  dis- 
crimination, every  vessel  he  may 
meet. — United  States  vs.  Baker.  5 
Blatchford,  pp.  11,  12.  The  act  of 
1819,  §5(3  Stat.  513;  R.S.  §5368). 
referring  to  the  law  of  nations  for 
a  definition  of  the  crime  of  piracy, 
is  a  constitutional  exercise  of  the 


62  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

of  piracy  may  be  extended  by  a  state,  as  to  offences  committed 
Avithin  its  territorial  waters,  or  by  its  citizens  on  the  high  seas, 
but  such  extensions  of  the  definition  have  no  international 
validity. 

Ship  Canals.  Artificial  ways  of  communication,  like  ship- 
canals,  however  important  their  construction  may  prove  to  be 
in  its  effects  upon  commerce,  can  acquire  interest  from  the 
point  of  view  of  international  law  only  when  their  use  and 
control,  especially  in  time  of  war,  have  been  made  the  subject 
of  treaty  stipulation.  Regarded  simply  as  engineering  con- 
structions, the  mere  fact  of  their  existence  does  not  operate 
to  diminish  or  modify,  in  any  respect,  the  civil  or  criminal 
jurisdiction  of  the  state  within  whose  territory  they  are  situ- 
ated ;  which,  indeed,  can  only  be  modified  by  treaty  stipula- 
tions. The  question  of  their  construction  and  use,  being  a  new 
one  at  international  law,  it  is  sufificient  to  say,  at  this  point, 
that  no  existing  rules  apply  to  them,  or  can  be  made  so  to 
apply,  by  any  process  of  construction.     They  are  not  arms  of 

power  of  Congress  to  define  and  then  no  blame  attaches  to  the  act ; 
punish  that  crime.  Piracy  is  de-  or  it  may  be  without  just  excuse, 
fined  by  the  law  of  nations  with  and  then  it  carries  responsibility 
reasonable  certainty.  Robbery,  or  for  damages.  If  it  proceed  further, 
forcible  depredation  upon  the  sea,  if  it  be  an  attack  from  revenge  and 
atiiino  fiirandi,  is  piracy  by  the  law  malignity,  from  gross  abuse  of  pow- 
of  nations.  —  United  States  vs.  er,  and  a  settled  purpose  of  mis- 
Smith,  5  Wheaton,  153.  Pirates  chief,  it  then  assumes  the  character 
may,  without  doubt,  be  lawfully  of  a  private,  unauthorized  war,  and 
captured  on  the  ocean  by  the  pub-  may  be  punished  by  all  the  penal- 
lie  or  private  ships  of  every  nation  ;  ties  which  the  law  of  nations  can 
for  they  are,  in  truth,  the  common  properly  administer.  — The  Mari- 
enemies  of  all  mankind,  and,  as  anna  Flora,  11  Wheaton,  40  [41]; 
such,  are  liable  to  the  extreme  United  States  t/i'.  Brig  il/a/^/l  ^^//d'/, 
rights  of  war.  And  a  piratical  ag-  2  Howard,  236.  A  vessel  loses  her 
gression  by  an  armed  vessel  sailing  national  character  by  assuming  a 
under  the  regular  flag  of  any  na-  piratical  character,  and  a  piracy 
tion,  may  be  justly  subjected  to  the  committed  by  a  foreigner  from  on 
penalty  of  confiscation  for  such  a  board  such  a  vessel  upon  any  other 
gross  breach  of  the  law  of  nations,  vesselwhatever  is  punishable  under 
But  every  hostile  attack,  in  a  time  §  8  of  the  act  of  1790  (i  Stat, 
of  peace,  is  not  necessarily  pirati-  113;  R.  S.  §  5360);  United  States 
cal.  It  may  be  by  mistake,  or  in  vs.  Pirates,  5  Wheaton,  p.  184.  See 
necessary  self-defence,  or  to  repel  a  also  Foreign  Relations  of  theUnited 
supposed  meditated  attack  by  pi-  States,  1877,  pp.  442-447. 
rates.     It  may  be  justifiable,  and 


STATES  AND   THEIR  ESSENTIAL  ATTRIBUTES  63 

the  sea,  or  straits,  or  rivers ;  neither  are  they  natural  channels 
of  trade  or  commerce  over  which  all  nations  have  the  right  of 
innocent  passage.  Their  neutrality  in  war  is  the  most  serious 
question  that  can  arise  with  respect  to  them,  and  this  can  only 
be  secured  by  a  guarantee  of  the  maritime  powers,  or  by  a 
sufficient  number  of  them  to  secure  the  observance  of  such 
guarantee.' 

The  Panama  and  Nicaragua  Canals.  The  neutrality  of 
the  partly  constructed  Panama  Canal  is  guaranteed  by  the 
United  States  ;°  that  of  the  proposed  Nicaragua  Canal  is  joint- 
ly guaranteed  by  Great  Britain  and  the  United  States  in  the 
Clayton-Bulwer  treaty,  which  provides  that  "when  the  said 
canal  shall  have  been  completed  they  will  protect  it  from  in- 
terruption, seizure,  or  unjust  confiscation,  and  that  they  will 
guarantee  the  neutrality  thereof,  so  that  the  said  canal  may 
be  forever  open  and  free,  and  the  capital  invested  therein 
secure."^ 

The  Suez  Canal.  The  neutrality  of  the  Suez  Canal  was 
provided  for  in  a  treaty  entered  into  at  Constantinople  on 
October  29,  1888,  to  which  Austria,  Egypt,  France,  Germany, 
Great  Britain,  Italy,  the  Netherlands,  Russia,  Spain,  and  Tur- 
key were  the  signatory  parties.  The  treaty  provides  that  the 
maritime  canal  at  Suez  shall  be  open  at  all  times,  in  peace  as 
well  as  in  war,  to  commercial  vessels  and  to  ships  of  war  of  all 
nations,  without  distinction  of  flag.*      The  signatory  parties 

'  Lawrence,   Int.   Law,   §    no;  I  also  II  Dig.  Int.  Law,  §   150;   III 

Ferguson,  §§  91-93 ;  Snow,  p.  29.  Ibid.  §  293. 

"^  Article  xxxv.  Treaty  of  Decern-  *  Revue  de  Droit  International, 

ber  12,  1846;  Treaties  and  Conven-  vol.  xx.  pp.  529-558.    When  Prince 

tions  of  the  United  States,  1776-  Metternich  was  consulted  in  1838 

1887,  pp.  204,  205;  II  Dig.  Int.  Law,  in  regard  to  the  feasibility  of  the 

§  40.  project,  he  is  said  to  have  advised 

=  Article  v.  Treaty  of  April   19,  Mehemet   Ali,  the  reigning  Khe- 

1850;  Treaties  and  Conventions  of  dive  of  Egypt,  to  secure  the  neu- 

the  United  States,   1776-1887,  pp.  tralization  of  the  canal  by  a  Euro- 

440-444;  I  Dig.  Int.  Law,  §  40;  III  pean  treaty  before  undertaking  its 

Ibid.  §  287  flf.     See  also  tlie  article  construction.— Ibid.    p.    529;    see 

by   A.  S.   de   Bustamente,    in  the  also  vol.  xviii.  Ibid.  p.  159,  and  vol. 

Revue  de  Droit  International,  vol.  xix.  p.  193. 
xxvii.  pp.  1 1 2- 143,  223-244.    See 


64  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

agree  to  place  no  obstructions  upon  the  use  of  the  canal, 
either  in  peace  or  war;  they  also  agree  that  the  canal  shall  not 
be  made  the  subject  of  a  hostile  blockade;  that  military  ob- 
structions shall  not  be  placed  in  the  waters  of  the  canal  or 
those  of  its  feeders,  and  that  no  acts  of  hostility  shall  be  per- 
mitted in  the  canal  itself  or  within  a  marine  league  of  its  ter- 
minal ports.' 

Submarine  Telegraph  Cables.  The  question  of  submarine 
cables  can  perhaps  be  best  discussed  in  connection  with  the 
high  seas  and  the  jurisdiction  of  the  coasts  at  which  they  ter- 
minate. The  principle  of  the  freedom  of  the  high  seas  has 
long  been  recognized  at  international  law;  if,  therefore,  the 
surface  of  the  high  seas  be  free,  for  purposes  of  commerce  and 
navigation,  their  use  beneath  the  surface,  for  any  economic  or 
commercial  purpose,  must,  from  the  nature  of  the  case,  be  equal- 
ly free.  When  a  cable  reaches  soundings,  however,  within 
the  three  mile  limit,  it  passes  under  the  exclusive  jurisdiction 
of  the  state  within  whose  territory  its  terminal  station  is  lo- 
cated. Questions  in  respect  to  the  construction  and  mainte- 
nance of  oceanic  cables,  and  of  their  protection  from  injury  in 
time  of  peace,  like  their  neutrality  in  war,  can  only  be  effec- 
tively regulated  by  the  concerted  action  of  the  maritime  pow- 
ers ;  the  former  of  these  questions,  indeed,  has  already  been 
made  the  subject  of  treaty  stipulation. 

With  a  view  to  secure  such  international  action,  a  conference 
of  thirty-one  states,  convened  upon  the  invitation  of  the  French 
Government,  met  at  Paris  on  October  16,  1882,  and  drew  up  a 
project,  having  for  its  purpose  the  maintenance  of  submarine 
cables  and  their  preservation  from  injury.  As  a  result  of  this 
conference,  a  protocol  was  signed  by  the  representatives  of 
thirty-one  states,  and  submitted  to  their  respective  govern- 
ments for  consideration.  In  pursuance  of  this  agreement  a 
second  conference  was  held  at  Paris,  where,  on  March  14, 
1884,  a  convention  was  entered  into  which  was  signed  by  the 

*  For  a  discussion  of  the  neutral-     615;   vol.  xviii.  p.  159;  vol.  xx.  p. 
ity  of  the  Suez  Canal,  see  Revue  de      529. 
Droit   International,   vol.  xvii.   p. 


STATES   AND   THEIR   ESSENTIAL  ATTRIBUTES  65 

duly  authorized  representatives  of  twenty -five  independent 
states.  In  order  to  give  the  contracting  parties  an  oppor- 
tunity for  the  adoption  of  the  requisite  municipal  legislation, 
the  1st  of  January,  1884,  was  agreed  upon  as  the  date  when 
the  convention  was  to  become  operative.  The  ratifications  of 
seventeen  states  were  exchanged  at  Paris  on  April  16,  1885. 

The  treaty  applies  to  such  legally  established  submarine 
cables  as  are,  or  may  be  landed,  on  the  territory  of  the  sig- 
natory powers.  It  gives  to  the  act  of  wilfully  injuring  or 
destroying  such  cables  the  character  of  a  penal  offence  ;  con- 
fers certain  rights  of  way  and  position  upon  vessels  engaged  in 
the  construction  or  repair  of  submarine  cables,  and  requires 
other  ships  to  keep  at  a  distance  of  one  nautical  mile  from 
vessels  so  engaged  ;  it  also  requires  all  vessels  (including  fish- 
ing craft)  to  pass  buoys,  marking  the  position  of  cables,  at  a 
distance  of  one-quarter  of  a  nautical  mile.  Offences  created 
by  the  treaty  are  triable  in  the  courts  of  the  state  to  which 
the  vessel  committing  the  offence  belongs,  and  proceedings 
and  trials  are  to  take  place  as  summarily  as  the  laws  of  such 
state  will  permit.  No  provision  is  made  for  the  neutrality  of 
submarine  cables,  or  for  their  use  in  war ;  indeed,  the  conven- 
tion contains  a  clause  providing  that  its  stipulations  shall  "in 
nowise  affect  the  liberty  of  action  of  belligerents.'" 

1  Treaties  and  Conventions  of  the  interpretation  of   articles    ii.   and 

United  States,  1776-1887,  pp.  1176-  vi.  of  the  convention  was   signed 

1 185.     By  a  clause  of   this  treaty  at  Paris  on  December  i,  1886,  and 

the  commanding  officers  of  public  a  final  protocol,  signed  at  Paris  on 

armed  vessels    of  the  contracting  July  7,    1887,   fixing  upon    May  i, 

parties,  if  they  have  reason  to  be-  1888,  as  the  date  upon  which  the 

lieve  that  a  merchant    vessel  has  instrument  was  to  become  finally 

committed  an  ofTence  in  violation  operative,  were  ratified  by  the  Unit- 

of  the    treaty,   are    authorized   to  ed  States  on  May  i,  1888. — Trea- 

require  the  captain  of  such  vessel  ties  and  Conventions  of  the  United 

to  furnish  evidence  of  nationality.  States,  pp.  1184,  1185.     For  other 

and  such  reports  in  respect  to  of-  correspondence   in  respect  to  the 

fences  against  the  treaty  as  they  execution   and    operation    of    this 

may  submit   may  be  used   in  evi-  convention,  see  Foreign  Relations 

dence  in  the  courts  of  the   state  of  the  United  States,  1883,  pp.  253- 

whose  flag  and  papers  such  offend-  258,  294-296,  285-291,  296-298,  304, 

ing  vessel   m.ay  carry.     A   subse-  305;  Ibid.  1887,  pp.  360-368.     The 

quent  declaration   respecting   the  United  States,  by  an  Act  of  Con- 


(£  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Acquisition  of  Territory.      Territory  may  be  acquired  in 

several  ways,  of  which  the  principal  are : 

((7.)  By  Occupation.  This  method  is  applied  to  the  acquisi- 
tion of  those  portions  of  the  earth's  surface  which  are  either 
unoccupied  by  man,  or  are  inhabited  by  savage  or  uncivilized 
races,  who  are  unable,  or  who  have  not  the  desire,  to  establish 
those  relations  of  intercourse  with  other  states  which  are  rec- 
ognized by  the  rules  of  international  law.  As  little  territory 
remains  in  the  world  which  is  absolutely  unoccupied,  it  follows 
that  future  acquisitions  can  only  be  made  at  the  territorial  ex- 
pense of  weak  or  uncivilized  races ;'  such,  indeed,  are  the  ac- 
quisitions which  are  now  being  made  by  the  different  states 
of  Europe  in  the  continents  of  Asia  and  Africa.  In  some  in- 
stances the  title  to  territory  thus  acquired  is  purchased  from 
the  prior  occupants ;  in  a  great  majority  of  cases,  however,  it 
is  obtained  by  an  exercise  of  superior  force. 

{b^  By  Accretion.  This  method  of  acquiring  territory  re- 
sults from  an  operation  of  the  laws  of  nature,  and  consists  in 
the  acquisition  of  soil,  on  the  banks  of  rivers,  due  to  the  ero- 
sive action  of  the  current.  Such  an  increase  in  the  territory 
of  a  state  implies  a  corresponding  diminution  in  the  territory 
of  another.^ 

(^.)  By  Treaty.  This  method  of  acquisition  corresponds  to 
the  alienation  of  real  estate  among  private  individuals ;  the 
treaty  of  cession  corresponding  to  the  deed  of  conveyance, 
which  operates  to  transfer  the  ownership  of  land  from  one 

gress  which  was  approved  by  the  contained  the  declaration  that  "the 

President  on  February  29,  1888  (25  American  continents,  by  the  free 

Statutes  at  Large,  p.  41),  made  suit-  and  independent  condition  which 

able  provision  for  the  enforcement  they    have    assumed     and    main-, 

of  the  treaty,  in  so  far  as  its  citi-  tained,  are   not  to  be  considered 

zens  or  other  persons  subjected  to  as   subjects    for    future    coloniza- 

its  jurisdiction  were  concerned.  See  tion  by  any  European  power.     See 

vol.  xii.  Revue  de  Droit  Internation-  also  Revue  de  Droit  International, 

al,  pp.  247-275;  XV.  ibid.  pp.  17-43.  vol.  xviii.  p.  236;   vol.  xx.  p.  605  ; 

'  One  of  the  paragraphs  in  Presi-  Jones  vs.  United  States,  137  United 

dent    Monroe's    message   in   1823,  States,  202;  Smith  t/j. United  States, 

which    has  sometimes   been  erro-  137  United  States,  224. 
neously  regarded    as    a   complete         "See  the  article,  p.  46,  entitled 

statement  of  the  Monroe  doctrine,  "  Rivers  as  Boundaries." 


STATES   AND  THEIR   ESSENTIAL   ATTRIBUTES 


67 


person  to  another.  The  consideration  actuating  the  transfer 
may  be  pecuniary,  or  there  may  be  an  exchange  of  portions 
of  territory,  or  the  transfer  may  be  made  in  deference  to  the 
wishes  of  the  inhabitants  of  the  ceded  district." 

{d.)  By  Conquest,  or  by  Conquest  Completed  by  a  Treaty  of 
Peace.  Such  acquisitions  of  territory  are  in  the  highest  de- 
gree involuntary,  being  accompHshed,  in  every  case,  by  an  ex- 
ercise of  superior  force  ;  such  transfers,  however,  are  none  the 
less  recognized  at  international  law,  and  titles  based  upon  con- 
quest are  as  valid  as  those  obtained  by  the  consent  of  the  in- 
terested states.^ 


'  The  Louisiana  territory,  Flor- 
ida, the  Gadsden  purchase,  and  the 
territory  of  Alaska  are  examples 
of  acquisitions  by  treaty  ;  the  con- 
sideration in  each  case  being  pe- 
cuniary. 

^TheterritoryacquiredfromMex- 
ico  in  consequence  of  the  war  with 
that  power  in  1845- 1848,  Cuba, 
Porto  Rico,  in  the  Western  Con- 
tinent, Alsace-Lorraine  in  Europe, 
and  the  territories  acquired  by  Rus- 
sia in  Europe,  and  by  the  United 
States  in  Asia,  are  examples  of  ac- 
quisitions of  territory  by  conquest 
perfected  by  treaty  ;  the  acquisition 
of  territory  from  Mexico  by  the 
United  States  in  1848  was  also 
made  the  subject  of  a  pecuniary 
indemnity,  as  was  the  case  with  the 
acquisition  of  thePhilippinelslands 
by  the  same  power  in  1898.  The 
conquest  of  a  country  or  portion  of 
a  country  by  a  public  enemy  entitles 
such  enemy  to  the  sovereignty,  and 
gives  him  civil  dominion  as  long  as 
he  retains  his  military  possession. 
Inhabitants  and  strangers  who  go 
there  during  the  occupation  of  the 
enemy  must  take  the  law  from  him 
as  the  ruler  de  facto,  and  not  from 
the  government  de  jure  which  has 
been  expelled.— IX  Opinions  of  At- 
torney-General, p.  140.  But  a  terri- 
tory conquered  by  an  enemy  is  not 
to  be   considered  as  incorporated 


into  the  dominions  of  that  enemy, 
without  a  renunciation  in  a  treaty 
of  peace,  or  a  long  and  permanent 
possession.  Until  such  incorpora- 
tion, it  is  still  entitled  to  the  full 
benefit  of  the  law  of  postliminy. — 
United  States  vs  Hayward,  2  Galli- 
son,  501.  A  revolutionary  party, 
like  a  foreign  belligerent  power,  is 
supreme  over  the  country  it  con- 
quers, as  far  and  as  long  as  its  arms 
can  carry  and  maintain  it. —  IX 
Opinions  of  Attorney- General,  p. 
140.  By  the  conquest  and  occupa- 
tion of  Castine,  that  territory  passed 
under  the  temporary  allegiance  and 
sovereignty  of  the  enemy.  The  sov- 
ereignty of  the  United  States  over 
the  territory  was  suspended  during 
such  occupation,  so  that  the  laws 
of  the  United  States  could  not  be 
rightfully  enforced  there,  or  be  obli- 
gatory upon  the  inhabitants  who  re- 
mained and  submitted  to  the  con- 
querors. —  Ibid.  2  Gallison,  501 ; 
Hall,  §§  205,  206  ;  Dana's  Wheaton, 
§  346,  note  169.  Rights  of  private 
property,  in  territory  acquired  by 
conquest,  undergo  no  change  as  a 
consequence  of  the  fact  of  con- 
quest.— United  States  vs.  Perche- 
man,  7  Peters,  51-87;  III  Philli- 
more,  pp.  863-868;  II  Halleck,  pp. 
505-507  ;  Strother  vs.  Lucas,  12  Pe- 
ters, 410. 


68  the  elements  of  international  law 

^      Servitudes 

Origin  and  Application  of  the  Term.  The  term  servitude 
is  borrowed  from  the  Roman  law,  and  is  applied  in  the  inter- 
national relations  of  states  to  express  an  obligation  upon  the 
part  of  one  state  to  permit  a  thing  to  be  done  or  a  right  to  be 
enjoyed,  by  another  state,  within  or  upon  its  territory.  The 
thing  done,  or  the  right  enjoyed,  however,  must  not  be  suffi- 
cient in  amount  or  importance  to  constitute  a  restriction  upon 
the  sovereignty  or  independence  of  the  servient  or  subordi- 
nate state.'  The  state  enjoying  the  benefit  or  privilege  of  the 
servitude  is  called  the  doinmant  state.  The  state  lying  under 
the  obligation  involved  is  called  the  servient  state.  The  exist- 
ence of  a  servitude  is  not  inconsistent  with  entire  sovereignty 
and  independence  on  the  part  of  the  servient  state.  The  fol- 
lowing examples  are  illustrations  of  servitudes:  Suppose  two 
states,  A  and  B,  to  be  separated  by  a  river ;  A  may  lie  under 
a  servitude  to  B  not  to  construct  works  of  improvement  upon 
the  boundary  river  which  shall  injure  the  opposite  bank.  Sup- 
pose two  states,  C  and  D,  to  be  situated,  one  above  the  other, 
upon  the  course  of  a  navigable  river,  the  mouth  and  lower 
waters  being  situated  in  tlie  territory  of  C  ;  C  may  lie  under  a 
servitude  to  D  of  allowing  its  citizens  the  privilege  of  navi- 
gating the  river  to  the  sea;  D  may  lie  under  an  obligation  to 
C  not  to  use  the  banks  of  the  river  within  the  territory  of  C 
for  the  purpose  of  loading  and  unloading  cargoes. 

How  Created  and  Terminated.  Servitudes  may  exist  by 
immemorial  prescription,  such  existence  being  tacitly  or  ex- 
pressly recognized  by  other  states.  Such,  in  great  part,  was 
the  case  of  the  Danish  Sound  Dues.  They  may  also  be  cre- 
ated by  treaty,  and  may  be  amended,  increased,  or  modified  in 
the  same  manner.     They  may  be  extinguished  by  treaty,  by 

'  Under  the  name  of  easements  by  the  sovereign  authority  of  the 

the  principle  of  servitudes  is  recog-  state,  an  easement  must,  according 

nized  by  the  common  law,  with  this  to  the  common  law,  originate  in  an 

difference,  however,  that  whereas  a  agreement  between  the  interested 

servitude  could  have  been  imposed  parties, 
upon  an  individual  or  his  property 


STATES   AND   THEIR    ESSENTIAL   ATTRIBUTES  69 

non-user,  and  in  some  cases  by  forcible  denial  of  the  obligation. 
They  must  consist  in  an  obligation  to  allow  a  thing  to  be 
done,  or  a  right  to  be  exercised,  or  in  refraining  from  doing 
a  thing;  they  can  never  consist  in  an  obligation  to  do  a  thing.* 
They  are  further  classified  into  positive  and  negative,  h.  posi- 
tive servitude  consists  in  allowing  a  thing  to  be  done,  or  a  right 
to  be  exercised  upon  the  territory  of  the  servient  state;  a  neg- 
ative servitude  consists  in  refraining  from  the  exercise  of  a 
right  by  a  servient  state. 

Examples  of  Servitudes.  The  following  examples  of  ser- 
vitudes created  by  treaty  are  cited  by  Phillimore:^ 

(i.)  In  the  treaty  of  Utrecht,  of  1713,  between  England 
and  France,  it  was  agreed  on  the  part  of  France  that  the 
Stuart  pretenders  should  not  be  permitted  to  reside  in  French 
territory. 

(2.)  In  the  treaty  of  Utrecht,  between  Spain  and  England, 
the  possession  of  Gibraltar  by  the  latter  power  was  confirmed 
by  Spain  on  condition  that  Moors  and  Jews  should  not  be 
permitted  to  reside  there. 

(3.)  The  treaty  of  Paris,  of  18 14,  provided  that  Antwerp 
was  to  be  an  exclusively  commercial  port. 

(4.)  By  the  treaty  of  1831  certain  Belgian  fortresses  were 
to  be  demolished  by  December  i,  1833. 

EXTRA-TERRITORIAL   JURISDICTION   OF   A   STATE 

Nature  and  Extent.  It  has  been  seen  that  sovereignty  and 
territory  are,  in  general,  conterminous  ;  under  certain  circum- 
stances, however,  a  state  may  exercise  jurisdiction  over  its 
subjects  beyond  its  strict  territorial  limits;  this  extension  of 
jurisdiction  is  sanctioned  in  the  following  cases: 

ia^  Over  its  merchant  vessels  on  the  high  seas  ;  in  matters 
which  relate  exclusively  to  persons  on  board,  this  jurisdiction, 
as  will  presently  be  seen,  follows  them  into  the  ports  and  ter- 


'  I  Phillimore,  §  281;  Morey,  Out-  =*  I  Phillimore,  §§  281-283  \  Heff- 

lines  of  Roman  Law,  pp.  288-292.      ter,  §  43;  Kliiber,  §§  137-140. 


70  THE    ELEMENTS   OF   INTERNATIONAL    LAW 

ritorial  waters  of  foreign  states  into  which  they  may  pass  in 
the  prosecution  of  a  voyage. 

{b.)  Over  crimes  committed  by  its  subjects  in  territory  oc- 
cupied by  savages,  or  unoccupied,  and  not  claimed  by  any 
civilized  power.  If  this  jurisdiction  were  not  assumed  such 
crimes  as  kidnapping,  engaging  in  the  slave-trade,  etc.,  would 
go  unpunished.  For  this  reason  most  states,  in  their  munici- 
pal laws,  provide  for  their  trial  and  punishment. 

{c.y  Over  the  crime  of  piracy,  by  whomsoever  committed, 
on  the  high  seas,  or  on  land  without  the  jurisdiction  of  any 
civilized  state. 

A  similar  immunity  from  local  jurisdiction  attends  its  pub- 
lic armed  vessels,  its  armies  in  the  field,  and  other  organized 
bodies  of  its  land-forces,  its  sovereign,  its  ambassadors  and 
public  ministers,  and,  in  certain  cases,  its  consular  representa- 
tives ;  these  will  presently  be  discussed  under  the  head  of 
"  Ex-territoriality." ' 

Merchant  Vessels  on  the  High  Seas.  Merchant  vessels 
on  the  high  seas  are,  for  purposes  of  jurisdiction,  acknowledged 
to  be  a  part  of  the  territory  of  the  state  whose  papers  they 
carry  ;  crimes,  by  whomsoever  committed,  and  causes  of  action 
arising  on  board,  to  which  passengers  or  members  of  the  crew 
are  parties,  are  triable  by  its  courts;  such  jurisdiction  in  crim- 
inal cases  is  not  affected  by  the  fact  that  the  accused  is  a  for- 
eigner to  the  nationality  of  the  ship,  the  case  being  precisely 
the  same  as  if  the  offence  had  been  committed  within  the  ter- 
ritorial limits  of  the  state  under  whose  flag  she  sails.'^     From 

'I  Halleck,  chap.  vii.  §§   24-26;  ployed.     On  the  arrival  of  the  ship 

Manning,  pp.  1 17-122;  Hall,  §§  47-  in  Calcutta,  Anderson  was  arrested 

61  ;  I  Ortolan,  chapters  ix.  and  x. ;  by  the  local  authorities  on  a  charge 

Lawrence,  Int.  Law,  §  120;  Dana's  of  manslaughtei-,  for  which  he  was 

Wheaton,  §  95.  tried    and    convicted.      Upon   the 

°  Case   of  John   Atiderson  :    An-  representationsof  the  United  States 

derson  was  a  British  subject  and  was  the  British  Government  expressed 

employed  as  an  ordinary  seaman  on  its  regret  at  the  action  of  the  local 

board  a  vessel  carrying  the  Amer-  authorities,  and  its  substantial  con- 

ican    flag.     On    Januarj'    31,  1879,  currence    in   the   views   above  set 

while  on  the  high  seas,  Anderson  forth   in   respect  to  criminal  juris- 

assaulted  and  killed  the  chief  mate  diction   on  the  high  seas. — I  Dig. 

of  the  vessel  on  which  he  was  em-  Int.    Law,   §§   33,    33a;   I  Halleck, 


STATES  AND    THEIR   ESSENTIAL   ATTRIBUTES  7 1 

this  principle  it  follows  that,  in  time  of  peace,  these  ships  are 
exempt  from  visitation  and  search  by  foreign  vessels  of  war, 
except  in  strict  accordance  with  treaty  stipulations.  They 
are  subject,  however,  to  such  visitation  and  examination  by 
public  armed  vessels  of  their  own  nation  as  may  be  authorized 
by  its  municipal  laws.' 

Merchant  Vessels  in  Foreign  Ports.  So  soon,  however, 
as  a  merchant  ship  enters  a  foreign  port  it  is  subject  in  cer- 
tain respects  to  the  municipal  laws,  and  especially  to  the 
criminal  jurisdiction  of  the  country  in  which  the  port  is  sit- 
uated. For  any  unlawful  acts  done  by  her  while  thus  lying 
in  the  port  of  a  foreign  state,  and  for  all  contracts  entered  into 
while  there,  by  her  master  or  owners,  she  is  made  answerable 
to  the  laws  of  the  place ;  nor  can  an  immunity  from  the  oper- 
ation of  the  local  law  be  claimed  for  her  master  or  crew  if  they 
break  the  peace  or  disturb  public  order  in  such  port  by  the 
commission  of  crimes.  But  the  comity  and  practice  of  nations 
have  established  the  rule  of  international  law  that  such  vessel, 
so  situated,  is,  for  the  general  purpose  of  governing  and  regu- 
lating the  rights,  duties,  and  obligations  of  those  on  board,  to 
be  considered  as  a  part  of  the  territory  of  the  nation  to  which 
she  belongs.''  It  therefore  follows  that  acts  happening  on 
board  which  do  not  concern  the  tranquillity  of  the  port,  or 
affect  persons  foreign  to  the  crew,  are  not  amenable  to  the 
local  jurisdiction  ;  such  matters  being,  as  a  rule,  justiciable 
only  by  the  courts  of  the  state  to  which  the  vessel  belongs.' 

chap.  vii.  §  24  ;   Wheaton,  part   ii,  I  Dig.  Int.  Law,  §  33 ;  Hall,  §  45  ; 

chap.  ii.  §  106;  Vattel,  liv.  i.,  chap.  Lawrence,  Int.  Law,  §  120. 

xix.  §216;  Grotius,  liv.  ii.  chap.  iii.  -  I     Halleck,    chap.    vii.    §   26; 

§13;  I  Ortolan,  chap.  xiii. ;  V  Pra-  Wheaton,  part  ii. chap.  ii.§§  loi,  102; 

dier-Fodere,  §§  2263-2265.    See  also  Vattel,  liv.  i.  chap,  xxiii.  §§  290,  295  ; 

the    article    on   "  Exterritoriality,"  I  Ortolan,  chap.  xiii. ;    Hall,  §§  58, 

by  M.  Jules  Valery,  in    Revue  de  59;  Woolsey,  §  68 ;  V  Pradier-Fo- 

Droit  International,  vol.  xxix.  pp.  dere,  §§  2417-2437. 

5-25  ;    Crapo    z's.    Kelly,    16  Wal-  ^  I  Halleck,  chap.  vii.  §  26.    The 

lact,   610  ;    Wilson   z's.    McNamee,  principle  which  governs  the  whole 

102   U.  S.  574;   J^e   Moncan,  XIV  matter  is  this  :  disorders  which  dis- 

Fed.  Rep.  44.  turb  only  the  peace  of  the  ship  or 

'  I  Ortolan,  chap,  xii.;  Woolsey,  those  on  board  are  to  be  dealt  with 

§  54;    I   Halleck,  chap.  vii.   §  20;  exclusively  by  the  sovereignty  of 


72 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


3' 


Wildenhus  Case.  This  occurred  in  October,  1886.  The 
steamer  Noordland,  a  merchant  vessel  carrying  the  Belgian 
flag,  was  lying  at  its  pier  in  Jersey  City,  a  place  within  the 
territorial  jurisdiction  of  the  State  of  New  Jersey.  During  an 
affray  which  occurred  on  board  the  vessel,  Wildenhus  made  a 
murderous  assault  upon  one  Fijens,  both  being  members  of 


the  home  of  the  ship ;  but  those 
which  disturb  the  public  peace  may 
be  suppressed,  and,  if  need  be,  the 
ofienders  punished  by  the  proper 
authorities  of  the  local  jurisdiction. 
It  may  not  be  easy  at  all  times 
to  determine  to  which  of  the  two 
jurisdictions  a  particular  act  of  dis- 
order belongs.  Much  will  undoubt- 
edly depend  on  the  attending  cir- 
cumstances of  the  particular  case, 
.but  all  must  concede  that  feloni- 
ous homicide  is  a  subject  for  the 
local  jurisdiction,  and  that  if  the 
proper  authorities  are  proceeding 
with  the  case  in  the  regular  way, 
the  consul  has  no  right  to  prevent 
it. — Wildenhus  vs.  United  States, 
120  United'Btates,  i.  Elsewhere,  in 
the  discussion  of  the  same  case,  the 
court  makes  use  of  the  following 
language  :  "  From  experience,  how- 
ever, it  was  found  long  ago  that  it 
would  be  beneficial  to  commerce 
if  the  local  government  would  ab- 
stain from  interfering  with  the  in- 
ternal discipline  of  the  ship,  and 
the  general  regulation  of  the  rights 
and  duties  of  the  officers  and  crew 
towards  the  vessel  or  among  them- 
selves. And  so  by  comity  it  came 
to  be  generally  understood  among 
civilized  nations  that  all  matters  of 
discipline  and  all  things  done  on 
board,  which  affected  only  the  ves- 
sel or  those  belonging  to  her,  and 
did  not  involve  the  peace  or  dig- 
nity of  the  country,  or  the  tran- 
quillity of  the  port,  should  by  the 
government  be  left  to  be  dealt  with 
by  the  authorities  of  the  nation  to 
which  the  vessel  belonged  as  the 
laws  of  that  nation  or  the  interests 


of  its  commerce  should  require. 
But  if  crimes  are  committed  on 
board  of  such  a  character  as  to  dis- 
turb the  peace  and  tranquillity  of 
the  country  to  which  the  vessel 
has  been  brought,  the  offenders 
have  never,  by  comity  or  usage, 
been  entitled  to  any  exemption 
from  the  operation  of  the  local  laws 
for  their  punishment,  if  the  local 
tribunals  see  fit  to  assert  their 
authority." — Wildenhus  vs.  United 
States,  120  United  States,  r.  Mer- 
chant ships  are  a  part  of  the  terri- 
tory of  their  country,  and  are  so 
treated  on  the  high  seas,  and  par- 
tially, but  not  wholly  so,  while  in 
the  territorial  waters  of  a  foreign 
country.  Crimes  committed  on 
board  ship  on  the  high  seas  are 
triable  in  the  country  to  which  she 
belongs.  In  port,  the  local  author- 
ity has  jurisdiction  of  acts  com- 
mitted on  board  of  a  foreign  mer- 
chant ship  while  in  port,  provided 
those  acts  affect  the  peace  of  the 
port,  but  not  otherwise  ;  and  its 
jurisdiction  does  not  extend  to  acts 
internal  to  the  ship,  or  occurring 
on  the  high  seas.  The  authority 
of  the  ship's  country  in  these  cases 
is  not  taken  away  by  the  fact  that 
the  actors  are  foreigners,  provided 
they  be  of  the  crew  or  passengers 
of  the  ship.  The  local  authority 
has  right  to  enter  on  board  a  for- 
eign merchant-man  in  port  for  the 
purpose  of  inquiry  universally,  but 
for  the  purpose  of  arrest  only  in 
matters  within  its  ascertained  juris- 
diction.— The  Atlanta,  Ylll  Opin- 
ions of  Attorney-General,  p.  73. 


STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES  73 

the  crew  of  the  Noordland.  Wildenhus  was  arrested  by  the 
local  authorities  under  a  charge  of  murder,  whereupon  a  pe- 
tition was  presented  to  the  United  States  Circuit  Court  for 
the  Eastern  District  of  New  Jersey,  for  a  writ  of  habeas  cor- 
pus, with  a  view  to  secure  the  release  of  the  offender  in  order 
to  cause  him  to  be  transferred  to  the  custody  of  the  Belgian 
consul.  This  on  the  ground  that,  by  the  law  of  nations,  and 
in  accordance  with  the  terms  of  the  treaty  of  1880,  between 
the  United  States  and  Belgium,  the  State  of  New  Jersey  was 
without  jurisdiction  in  the  case.  The  application  for  the  writ 
was  denied  and  the  prisoner  was  remanded  to  the  custody  of 
the  state  authorities,  and  the  case  was  carried  to  the  Supreme 
Court  of  the  United  States  on  appeal.  It  was  there  decided 
that  article  xii.  of  the  treaty  of  March  9,  1880,'  between 
Belgium  and  the  United  States,  conferring  power  upon  Bel- 
gian consuls  in  the  United  States  to  take  cognizance  of  differ- 
ences between  captains,  ofifiicers,  and  crews  of  Belgian  merchant 
vessels  in  the  ports  of  the  United  States,  and  providing  that 
the  local  authorities  shall  not  interfere  except  when  a  disorder 
arises  of  such  a  nature  as  to  disturb  tranquillity  or  public  order 
on  shore  or  in  the  port,  does  not  apply  to  a  case  of  felonious 
homicide  committed  on  board  a  Belgian  merchant  vessel  in  a 
port  of  the  United  States ;  and  does  not  deprive  the  local  au- 
thorities of  the  port  of  jurisdiction  over  such  a  crime,  com- 
mitted by  one  Belgian  upon  the  person  of  another  Belgian, 
both  belonging  to  the  crew  of  the  vessel.^ 

Cases  of  the  "  Sally"  and  the  "  Newton."  The  Sally  was 
an  American  merchant  vessel  in  the  port  of  Marseilles,  and  the 
Nezvton  was  a  vessel  of  the  same  character  in  the  port  of  Ant- 
■  werp,  then  under  the  dominion  of  France.  In  the  case  of  the 
Sally,  the  mate,  in  the  alleged  exercise  of  discipline  over  the 
crew,  had  inflicted  a  severe  wound  upon  one  of  the  seamen ; 
in  that  of  the  Nezvton  one  seaman  had  made  an  assault  on  an- 

'  Treaties   and   Conventions    of  120  United    States,    i.      See   also 

the  United  States,  1776-1887,  pp.  Reg.  %>s.  Keyn,  L.  R.  2  Exch.  Div. 

80-84.  63;  I  Dig.  Int.  Law,  §§  35,  35a. 

'  Wildenhus  vs.  United   States, 


74  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

other  seaman  in  the  vessel's  boat.  In  each  case  the  proper 
consul  of  the  United  States  claimed  exclusive  jurisdiction  of 
the  offence,  and  a  similar  claim  was  advanced,  in  each  case, 
by  the  authorities  of  the  port.  The  French  Council  of  State 
pronounced  against  the  jurisdiction  of  the  local  tribunals. 
This  was  clearly  because  the  things  done  were  not  such  as  to 
disturb  the  peace  or  tranquillity  of  the  port.' 

_..     The  Principle  of  Exterritoriality 

Defiinition;  Application.  In  a  limited  number  of  cases 
states  permit  the  jurisdiction  of  other  states  to  be  exercised 
within  their  territory.  This  is  called  the  principle  of  exterri- 
toriality. It  is  a  fiction  of  law,  invented  to  explain  certain 
immunities  and  exemptions  from  the  local  law,  which  are  rec- 
ognized by  all  nations  in  their  dealings  with  each  other.  It 
does  not  explain  all  of  the  circumstances  that  may  arise  in 
any  of  the  cases  to  which  it  is  applied,  but  it  accounts  for 
many,  or  most  of  them,  more  satisfactorily  than  does  any  other 
method  of  treatment  that  has  been  proposed. 

From  the  definition  of  a  sovereign  state  it  is  apparent  that 
such  an  exercise  of  jurisdiction  can  only  be  possible  with  the 
tacit  or  express  consent  of  the  state  within  whose  territory  it 
is  exercised."  It  is  therefore  based  upon  comity,  and  is  held 
to  apply  in  the  following  cases: 

(i.)  To  Ships-of-War  in  Foreign  Ports.  It  has  been  seen 
that  the  public  armed  vessels  of  a  state,  while  on  the  high 
seas,  are,  like  those  of  its  merchant  marine,  subject  only  to 
the  law  of  the  state  under  whose  flag  they  sail.  By  the  gen- 
eral consent  of  nations  this  immunity  from  local  jurisdiction 
is  extended,  in  the  case  of  public  armed  vessels,  to  cover  the 
period  of  their  sojourn  in  the  ports  or  other  territorial  waters 
of  a  foreign  state.  There  has  been  considerable  discussion  as 
to  whether  the  exemption  accorded  to  ships -of- war  can  be 

'Dana's   Wheaton,    §§    103,  104,  Mer,  p.   271;  Annexe  J.  p.  445;  I 

note  63  ;  Snow,  Leading  Cases,  p.  Phillimore,  352. 

121;  Pitt-Cobbett,  Leading  Cases,  ^  Caseof  the£"jr<:^a«^^,  7  Cranch, 

p.  74;  I  Ortolan,  Diplomatic  de  la  116,  136. 


STATES   AND   THEIR    ESSENTIAL   ATTRIBUTES  75 

claimed  as  a  matter  of  strict  right,  or  is  based  upon  the  com- 
ity of  nations.  The  latter  view  is  now  generally  accepted. 
The  board  of  arbitration  in  the  Geneva  case  ruled  that  "  the 
privilege  of  exterritoriality  accorded  to  vessels  of  war  has  been 
admitted  into  the  law  of  nations  ;  not  as  an  absolute  right, 
but  solely  as  a  proceeding  founded  on  the  principles  of  courtesy 
and  mutual  deference  between  different  nations.'"  In  this 
view  Phillimore  and  Story  agree." 

If,  for  reasons  of  state,  the  ports  of  a  nation  generally,  or 
any  particular  ports,  be  closed  against  vessels  of  war  generally, 
or  the  vessels  of  war  of  any  particular  nation,  notice  is  usually 
given  of  such  determination.  If  there  is  no  such  prohibition 
the  ports  of  a  friendly  nation  are  considered  as  open  to  the 
public  ships-of-war  of  all  powers  with  whom  it  is  at  peace,  and 
those  vessels  are  supposed  to  enter  such  ports  and  remain  in 
them  under  the  protection  of  the  government  of  the  place.' 

Extent  of  the  Privilege.  War  vessels  are  subject  to  the 
jurisdiction  of  the  port  in  matters  of  quarantine,  and  are  re- 
quired to  obey  the  local  revenue  laws  and  the  port  regulations 
on  the  subject  of  anchorage,  lights,  and  harbor  police.'  They 
may  be  compelled,  by  force  if  need  be,  to  observe  such  regula- 
tions as  may  be  deemed  necessary,  by  the  state  in  whose  ports 
they  may  be,  for  the  maintenance  of  its  neutrality. 

The  privilege  of  exterritoriality  does  not  apply  to  members 

'Decision GenevaTribunal.p.  184.  the   place.      The   implied    license, 

'A   public   armed  vessel,  in  the  under  which  such  vessel  enters  a 

service  of  a  sovereign  at  peace  with  friendly   port,  may   reasonably  be 

the  United  States,  is  not  within  the  construed,  and,   it    seems    to    the 

ordinary  jurisdiction  of  our  tribu-  court,  ought   to   be   construed,  as 

nals  while  in  a  port  of  the  United  containing  an  exemption  from  the 

States.     But  the  sovereign  power  jurisdiction  of  the  sovereign,  with- 

of  the  United  States  may  interpose  in  whose  territory  she  claims  the 

and   impart  such  jurisdiction.      If  rights    of    hospitality.  —  The    Ex- 

there  be  no  prohibition,  the  ports  change,  7  Cranch,  116;  The  Santis- 

of  a  friendly  nation  are  considered  sima  Trinidad,  7  Wheaton,  283  ;  I 

as  open  to  the  public  ships  of  all  Phillimore,  §  344. 

powers  with  whom  it  is  at  peace,  ^  Case  of  the  £'.i-(;>^««^^,  7  Cranch, 

and    they   are   supposed   to   enter  141. 

such  ports,  and  to  remain  in  them,  M  Halleck,  pp.  188,  189;  I  Orto- 

while  allowed  to  remain,  under  the  Ian,  chap.  x.  ;    Hall,  §  55;    Snow, 

protection  of  the  government  of  Leading  Cases,  pp.  33-36, 


1^ 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


of  the  ship's  company  on  shore.  The  local  laws  apply  to 
them,  under  such  circumstances,  as  fully  and  strictly  as  to  any 
citizen  of  the  state,  or  to  any  foreign  sojourner.  Crimes  com- 
mitted by  ofificers  of  a  public  armed  vessel  or  by  members  of 
its  crew  on  shore,  therefore,  may  not  only  be  judicially  noticed 
by  the  local  tribunals,  but  may  be  made  the  subject  of  com- 
plaint in  the  diplomatic  way.' 

Exemption  from  Process.  The  exemption  of  ships-of-war 
from  local  jurisdiction  and  process  has  been  authoritatively 
discussed  by  Chief- justice  Marshall  in  the  case  of  the  Ex- 
change. "  If  there  be  no  prohibition,  the  ports  of  a  friendly 
nation  are  considered  as  open  to  the  public  ships  of  all  powers 
-  with  whom  it  is  at  peace  ;  and  those  vessels  are  supposed  to 
S-..  enter  such  ports  and  remain  in  them  under  the  protection  of 
the  government  of  the  place.  Whether  the  public  ships-of- 
war  of  one  nation  enter  the  ports  of  another  friendly  nation 


1  Bluntschli,  Le  Droit  Interna- 
tional Codifie,  liv.  iv.  §  321  ;  Pin- 
heiro  Ferreira,  Cours  de  Droit 
Public,  tit.  ii.  art.  xviii.  §  50 ; 
Hautefeuille,  Droit  des  Nations 
Neutres.  tome  i.  p.  349;  I  Hal- 
leck,  p.  190.  The  privilege  stands 
upon  principles  of  public  conven- 
ience, and  arises  from  the  presumed 
consent  or  license  of  nations,  that 
foreign  public  ships  coming  into 
home  ports  and  demeaning  them- 
selves according  to  law,  and  in  a 
friendly  manner,  shall  be  exempt 
from  the  local  jurisdiction.  "  But 
as  such  consent  and  license  are  im- 
plied only  from  the  general  usage 
of  nations,  they  may  be  withdrawn 
upon  notice  at  any  time  without 
just  ofTence ;  and  if  afterwards  such 
public  ships  come  into  our  ports, 
they  are  amenable  to  our  laws  in 
the  same  manner  as  are  other  ves- 
sels." But,  unless  withdrawn,  it  is 
presumed  to  be  conceded.  And  it 
is  now  settled  that  foreign  ships-of- 
war  and  boats,  the  particular  prop- 
erty  of  a   foreign   sovereign,   are 


not  liable  to  process,  though  the 
ships  and  boats  be  at  the  time  of 
the  cause  of  action  in  the  terri- 
torial waters  of  the  state  of  proc- 
ess.—  The  Exchange,  7-  Cranch, 
116,  145;  the  Santissinia  Trz'm'dad, 
7  Wheaton,  283;  I  Dig.  Int.  Law, 
§  36.  A  foreign  ship- of- war,  or 
any  prize  of  hers  in  command  of 
a  public  officer,  possesses,  in  the 
ports  of  the  United  States,  the 
rights  of  exterritoriality,  and  is  not 
subject  to  the  local  jurisdiction. 
A  prisoner  of  war  on  board  a  for- 
eign man-of-war,  or  of  her  prize, 
cannot  be  released  by  habeas  cor- 
pus issuing  from  courts  either  of 
the  United  States  or  of  a  particular 
state.  But  if  such  prisoner  of  war 
be  taken  on  shore,  he  becomes  sub- 
ject to  the  local  jurisdiction  or  not, 
according  as  it  may  be  agreed  be- 
tween the  political  authorities  of 
the  belligerent  and  neutral  power. 
— The  President  and  Prize,  VII 
Opin.  Att. -Gen.  p.  122  Gushing 
(1855);  V  Pradier-Fodere,  §§  136CK 
2400. 


STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES  77 

under  the  license  implied  by  the  absence  of  any  prohibition, 
or  under  an  express  stipulation  by  treaty,  they  are  equally  ex- 
empt from  the  local  jurisdiction.'" 

Case  of  the  "  Sitka!'  In  1856,  during  the  continuance  of  the 
Crimean  War,  the  Sitka,  a  Russian  vessel  which  had  been 
captured  by  a  public  armed  vessel  of  Great  Britain,  entered 
the  port  of  San  Francisco.  She  was  navigated  by  a  prize- 
crew  which  conferred  upon  her  the  character  of  a  public  armed 
vessel,  and  she  had  on  board,  at  the  time  of  her  entry,  several 
Russian  prisoners.  A  writ  of  habeas  corpus  was  issued  by  a 
court  of  the  State  of  California  and  served  upon  the  command- 
ing ofificer  of  the  Sitka,  who  sailed  out  of  the  harbor,  without 
making  the  required  return  to  the  mandate  of  the  writ.  The 
matter  was  brought  to  the  attention  of  the  United  States  Gov- 
ernment, by  whom  it  was  referred  to  the  Attorney-General 
for  an  opinion  as  to  the  question  of  jurisdiction  involved.  It 
was  held  by  that  ofificer  that  a  prisoner  of  war,  on  board  a  for- 
eign ship-of-war,  could  not  be  released  by  a  writ  of  habeas  cor- 
pus issued  by  a  court  of  the  United  States,  or  by  the  court  of 
a  particular  state  ;  on  the  ground  that,  so  long  as  such  prison- 
er remained  on  board  the  ship,  they  were  in  the  territory  and 
jurisdiction  of  their  sovereign.  There  the  neutral  had  no  right 
to  meddle  with  them.  It  was  held,  however,  that  if  such 
prisoner  be  taken  on  shore,  he  becomes  subject  to  local  juris- 
diction, or  not,  according  as  it  may  be  agreed  between  the 
political  authorities  of  the  belligerent  and  neutral  power.^ 

Case  of  the  ^'' Maine.''  The  United  States  battle-ship  Maine 
entered  the  harbor  of  Havana,  Cuba,  on  January  25,  1898. 
Immediately  upon  her  arrival,  the  customary  civilities  were 
exchanged  and  the  vessel  was  conducted,  by  a  government 
pilot,  to  the  anchorage  assigned  her,  as  a  foreign  vessel  of  war, 
by  the  local  naval  authorities.     Here  the  ship  remained  at 

'  Case  of  the  ^Irr^^i^z/^t',  7  Cranch,  lix,  liv.  ii.  title  ix.  chap.  i. ;  Haute- 

116;    the    Sajtt/ssiina    Trinidad,  7  feuille,  title  vi.  chap.  i.  §  i ;  Blunt- 

Wheaton,  325;  I  Halleck,  chap.  vi.  schh',  §  321. 

§§  25,  26;  Wheaton,  §  loi  ;    Hall,  §  "  Pitt-Cobbett,  Leading  Cases,  p. 

44;  I  Ortolan,  Diplomatiede  laMer,  36;   Hall,  p.  189;  VH  Opinions  of 

liv.  ii.  chap.  X.;  Heffter,  §  79;  Foe-  Attorney-General  U.  S.  p.  122. 


78  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

anchor  for  a  period  of  about  three  weeks.  During  that  time 
it  does  not  appear  that  any  special  measures  of  precaution 
were  resorted  to  by  the  Spanish  Government  with  a  view  to 
insure  the  safety  of  the  visiting  vessel.  At  9.40  P.M.  on  Feb- 
ruary 15th,  being  at  the  time  moored  to  the  buoy  assigned  her 
upon  her  arrival,  the  Maine  was  destroyed  by  the  explosion 
of  a  submarine  mine  which  caused  the  incidental  explosion  of 
one  or  more  of  her  forward  magazines.  A  naval  court  of  in- 
quiry was  immediately  convened  by  order  of  the  United  States 
Government,  which,  after  a  careful  and  exhaustive  investiga- 
tion of  the  circumstances,  reached  the  opinion  that  the  de- 
struction of  the  vessel  was  caused  by  the  explosion  of  a  mine 
exterior  to  the  ship,  and  was  not  due  to  the  fault  or  negli- 
gence of  her  officers  or  crew.  An  inquiry  instituted  by  the 
Spanish  Government,  after  a  less  complete  investigation,  is 
believed  to  have  reached  a  different  conclusion  ;  but  the  posi- 
tion of  certain  parts  of  the  ship's  structure,  in  consequence  of 
the  explosion,  including  portions  of  the  keel,  the  outer  shell, 
and  the  outside  bottom  plating,  were  such  as  to  offer  con- 
clusive proof  that  the  destruction  was  due  to  an  exterior 
explosion.'  By  whom  and  under  what  circumstances  the  de- 
struction was  caused  has  never  been  determined.  It  is  prop- 
er to  say,  however,  that  the  act  was  promptly  disclaimed  by 
the  local  colonial  authorities,  and  it  has  never  been  authori- 
tatively suggested  that  the  injury  was  ordered,  or  authorized, 
or  even  countenanced,  by  any  branch  or  portion  of  the  gov- 
ernmental authority  of  Spain. 

Although  the  relations  existing  between  the  governments  of 
the  United  States  and  Spain  were  strained  at  the  time  of  the 
occurrence,  the  circumstances  attending  the  entry  of  the  vessel 
were  by  no  means  unusual,  and  the  visit  was  not  made  until  a 
conference  had  been  had  with  the  Spanish  minister  in  Wash- 
ington, in  which  the  renewal  of  the  visits  of  public  armed  ves- 
sels of  the  United  States  to  Spanish  waters  had  been  discussed 

'  Message  of   President  McKin-     finding  of  the  Maine  Court  of  In- 
ley  of  March  28,  1898,  transmitting     quiry. 
to  Congress  the  proceedings  and 


STATES  AND   THEIR   ESSENTIAL   ATTRIBUTES  79 

and  accepted,  and  the  governmental  authorities  at  Madrid  and 
Havana  had  been  advised  of  the  purpose  of  the  United  States 
Government  to  resume  friendly  naval  visits  at  Cuban  ports,  and 
that  in  that  view  the  Maine  would  forthwith  call  at  the  port  of 
Havana/ 

The  case  is  novel  at  international  law  in  that  it  gives  rise  to 
a  question  as  to  the  nature  and  extent  of  the  responsibility 
incurred  by  a  state  which,  under  the  circumstances  above  set 
forth,  permits  a  foreign  vessel  of  war  to  enter  its  territorial 
waters.  The  rule  of  international  law  applying  to  the  case  is 
believed  to  be  correctly  stated  by  Chief -justice  Marshall  in 
the  case  of  the  Exchange  in  the  following  terms:  Unless 
closed  by  local  law,  "  the  ports  of  a  friendly  nation  are  consid- 
ered as  open  to  the  public  ships  of  all  powers  with  whom  it  is 
at  peace,  and  they  are  supposed  to  enter  such  ports,  and  to  re- 
main in  them,  while  allowed  to  remain,  under  the  protection 
of  the  government  of  the  place." '^  The  privilege  of  exter- 
ritoriality is  admitted  to  extend  only  to  the  officers  and  crews 
of  public  armed  vessels,  and  goes  no  further  than  to  exempt 
the  vessel  and  crew  from  the  operation  of  the  local  laws.  It 
confers  no  authority  upon  the  ofificers  of  a  visiting  vessel  to 
resort  to  measures  of  defence,  or  of  precautionary  police,  out- 
side the  ship,  or  within  the  territorial  waters  of  the  state  in 
whose  harbor  it  is  anchored  ;  for  such  protection  from  purely 
external  injury  the  ship  must  rely  upon  the  efforts  of  the  local 
authorities,  whose  duty  and  responsibility  it  is  to  resort  to 
such  measures  of  precaution  as  are  suggested  by  the  emer- 
gency of  the  occasion. 

Where  independent  nations  are  concerned,  the  degree  of 
care  to  be  shown  by  one  state  in  order  to  prevent  injury  to 
another,  where  such  duty  of  prevention  exists,  is  perhaps  best 
described  by  the  term  "  due  diligence"  ;  this  means  something 
more  than,  and  different  from,  "  reasonable  care,"  as  that  term 
is  used  in  describing  the  corresponding  obligation  owed  by  one 

1  Message  of  President  McKinley  ing  of  the  Maine  Court  of  Inquiry, 
of  March  28,  1898,  transmitting  to  '^  The  Exchange,  7  Cranch,  116, 
Congress  the  proceedings  and  find-      141, 


8o       THE  ELEMENTS  OF  INTERNATIONAL  LAW 

individual  to  another,  or  to  the  public,  and  implies  that  the 
diligence  used  in  the  prevention  of  injury  must  be  propor- 
tioned to  the  risk  of  such  injury  occurring  to  the  vessel  of  a 
friendly  nation  which  may  happen  to  enter  its  ports  or  terri- 
torial waters.  The  duty  of  protection,  and  the  expediency  of 
resorting  to  special  precautionary  measures,  upon  the  occasion 
of  a  public  armed  vessel  entering  even  a  friendly  harbor,  are 
suggested  by  the  fact  that  the  crew  are  not  only  strangers  to 
the  port,  but  are  members  of  a  different  nationality,  and  thus 
occupy  a  very  different  relation  from  that  of  ordinary  aliens ; 
in  the  case  of  the  Maine,  a  resort  to  such  preventive  measures 
was  not  only  sanctioned  by  the  rules  of  international  law,  but 
required  by  express  treaty  stipulations,  and  strongly  suggested 
by  the  strained  relations  existing  between  the  United  States 
and  Spain. 

If,  in  view  of  the  local  situation,  or  in  consequence  of  its 
strained  relations  with  the  government  of  the  United  States, 
the  Spanish  Government  was  either  unable  or  unwilling  to 
charge  itself  with  the  safety  and  security  of  the  Maine,  it 
should  have  withheld  its  consent  to  the  entry  of  the  vessel 
into  its  territorial  waters ;  failing  to  do  this,  that  government 
was  justly  held  responsible  for  the  disaster  which  ensued  upon 
its  failure  to  exercise  the  diligence  which  was  demanded  by 
the  circumstances  of  the  case. 

Case  of  tlie  ^'  Baltimore ^  During  the  years  1890  and  1891 
a  revolutionary  movement  had  been  in  progress  in  Chili 
which  had  terminated  in  the  overthrow  of  the  Balmaceda 
government.  During  its  continuance  there  had  been  com- 
plaints on  the  part  of  the  revolutionary  party  that  partiality 
had  been  shown  to  their  opponents  by  the  government  of  the 
United  States,  in  the  detention  of  the  Itata,  a  vessel  engaged 
in  the  transportation  of  contraband  of  war  to  the  insurgent 
forces.  The  action  of  the  United  States  minister,  in  giving 
legationary  asylum  to  the  deposed  President  Balmaceda  and 
his  family,  was  also  complained  of.  As  a  consequence,  there 
was  a  strong  popular  feeling  against  the  United  St  tes  in  San- 
tiago, the  capital  of  the  republic,  and  in  Valparaiso,  its  princi- 


STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES  8 1 

pal  seaport.  While  the  relations  of  the  two  governments  were 
still  in  a  condition  of  considerable  tension,  the  commanding 
officer  of  the  United  States  steamship  Baltimore  gave  shore 
liberty  to  117  of  his  petty  officers  and  seamen  in  the  port  of 
Valparaiso.  An  outbreak  resulted,  in  which  one  seaman  was 
killed,  one  mortally  wounded,  and  seventeen  others  were  more 
or  less  severely  injured.  After  waiting  a  reasonable  time  for 
such  action  to  be  taken  as  seemed  to  be  warranted  by  the  impor- 
tance of  the  case,  a  demand  was  made  by  the  United  States 
for  redress  on  the  ground  that  the  public  authorities  of  Val- 
paraiso had  failed  to  protect  the  sailors,  who  were  on  shore 
liberty  from  the  war  vessel  of  a  friendly  power,  and  that  the 
seamen  of  the  Baltimore  had  been  assaulted  —  not  because 
they  were  foreign  sailors  —  but  because  of  their  American 
nationality.  The  disclaimer  of  the  Chilian  Government  not 
being  deemed  satisfactory  by  the  President  of  the  United 
States,  the  matter  was  made  the  subject  of  a  special  message 
to  Congress.  The  affair  was  finally  settled  by  the  payment  of 
a  money  indemnity  to  the  injured  seamen  and  to  the  families 
of  those  who  had  lost  their  lives  in  consequence  of  the  failure 
of  the  local  authorities  to  afford  them  adequate  protection.' 
Case  of  the  "  Constitution ^  The  Constitution,  a  public 
armed  vessel  of  the  United  States,  while  engaged  in  the 
transportation  to  New  York  of  a  portion  of  the  American  ex- 
hibit at  the  Paris  Exposition  of  1867,  stranded  on  the  English 
coast  near  Swanage,  and  was  obliged  to  accept  the  services  of 
several  tugs  and  wrecking  vessels  in  order  to  enable  it  to  re- 
sume its  voyage.  Suit  for  the  payment  of  salvage  was  insti- 
tuted in  the  proper  admiralty  court,  where  it  was  decided  that, 
in  the  case  of  a  ship-of-war,  there  was  a  complete  exemption 
from  local  jurisdiction,  including  the  service  of  process  against 
the  ship.     The  case  was  therefore  dismissed  with  costs,^  and  the 

'Executive  Document    No.   91,  589;  Snow,  Int.  Law,  p.  63.   For  the 

House   of    Representatives,  U.  S.,  case  of  the  liata,  from  the  point  of 

Thirty- second  Conj^ress,  first  ses-  view  of  neutrality,  see  the  chapter 

sion  ;  Foreign  Relations  U.  S.  1892,  entitled  Neutrality. 
pp.  52-57,  61-64,  67;  Revue  de  Droit         -  48  L.  J.,  N.  S.,  P.  D.  and  A.  13  ; 

International,   vol.   xxiii.    pp.  588,  Pitt-Cobbett,  Leading  Cases  in  Int. 


82  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

claim  was  subsequently  settled  by  a  voluntary  payment  on 
the  part  of  the  United  States  Government. 

Asylum  on  Public  Armed  Vessels.  It  is  now  well  settled 
that  no  right  of  asylum  exists,  in  behalf  of  criminal  offenders, 
on  board  the  public  armed  vessels  of  a  state  while  in  foreign 
territorial  waters.  Where,  however,  the  offence  is  political,  as 
distinguished  from  criminal,  the  usage  of  nations  still  author- 
izes such  asylum  to  be  extended  to  a  political  refugee,  by  the 
commanding  officer  of  a  ship-of-war,  but  only  in  countries 
where  insurrections  are  of  frequent  occurrence  and  where 
political  institutions  are  unstable  and  subject  to  constant  and 
violent  changes.  In  such  localities  requests  for  asylum  should 
be  refused  except  in  extreme  and  exceptional  cases,  such  as 
the  pursuit  of  a  refugee  by  a  mob,  or  where  such  action  is  nec- 
essary to  save  life.' 

OfTences  Committed  on  Shore.  Where  offences  are  com- 
mitted on  shore  by  officers  or  members  of  the  crew  of  a  public 
armed  vessel,  no  immunity  from  local  jurisdiction  can  be 
claimed,  and  such  offences  may  be  punished  by  the  authori- 
ties of  the  port,  or  the  offenders  may  be  handed  over  to  the 
commanding  officer  of  the  ship,  with  a  view  to  their  trial  and 
punishment  in  accordance  with  the  laws  of  the  state  under 
whose  flag  they  sail.  It  is  not  unusual,  however,  where  minor 
infractions  of  order  are  in  question,  and  especially  where  no 
injury  has  been  inflicted  upon  a  citizen  of  the  state  within 
whose  territorial  waters  the  ship  happens  to  be,  for  the  release 
of  the  offenders  to  be  requested  by  their  commanding  officer. 


Law,  p.  34 ;  see  also  the  case  of  the  ists,  local  usage  sanctions  the  grant- 

Charkieh,  L.R.  4,  A.  and  E.  49 ;  Pitt-  ing  of  asylum, but  even  in  the  waters 

Cobbett, Leading  Cases,  6-9;  I  Dig.  of  such   countries   officers   should 

Int.  Law,  §  36.  refuse  all  applications  for  asylum 

1  The  United  States  Navy  Regu-  except  when  required  by  the  inter- 

lations    contain   the  following  re-  ests  of  humanity  in  extreme  or  ex- 

quirement :    "  The  right  of  asylum  ceptional  cases,  such  as  the  pursuit 

for  political  or  other  refugees  has  of  a   refugee  by  a  mob.     Officers 

no  foundation  in  international  law.  must    not    directly    or    indirectly 

In  countries,  however,  where  fre-  invite  refugees  to  accept  asylum." 

quent  insurrections  occur,  and  con-  — U.  S.  Navy  Regulations,  par.  288, 

stant  instability  of  government  ex-  edition  of  1896. 


STATES   AND    THEIR    ESSENTIAL   ATTRIBUTES 


83 


While  such  release  is  granted  in  most  cases,  the  local  author- 
ities are  under  no  obligation  to  comply  with  the  request,  as 
such  offenders  are  fully  liable  to  the  local  law,  for  criminal 
offences  committed  within  its  jurisdiction/ 

(2.)  Passage  of  Troops  through  the  Territory  of  a  Foreign 
State. — This  practice  was  much  more  frequent  in  former  times 
than  it  is  at  present.  The  increasing  strictness  with  which  the 
rules  of  neutrality  are  now  observed  has  rendered  the  practice 
obsolete  in  war,  and  the  generally  cherished  desire  to  avoid 
international  complications,  by  removing  one  of  the  most  fruit- 
ful causes  of  international  misunderstanding,  has  contributed 
powerfully  to  diminish  its  frequency  in  time  of  peace."  Per- 
mission for  such  movements  is  now  rarely  accorded,  save  in 
very  exceptional  cases — as  to  an  ally  in  war,  or  as  an  act  of 
courtesy  or  humanity  in  time  of  peace.  In  the  few  instances 
in  which  it  is  permitted,  the  conditions  of  the  movement  are 
arranged,  with  great  minuteness  of  detail,  in  a  preliminary 
treaty  or  agreement.^ 


'  V  Pradier-Fodere,  §  2408  ;  Orto- 
lan, liv.  ii.  chap.  iv.  tit.  i.  p.  309;  I 
Phillimore,  §  346;  I  Halleck,  p.  190; 
Walker,  Manual,  §  27,  p.  79  ;  Walk- 
er, Int.  Law,  pp.  123-134;    Hall,  § 

^The  application  of  the  principle 
of  exterritoriality  to  the  passage  of 
troops  through  the  territory  of  a 
friendly  state  is  well  explained  by 
Chief-justice  Marshall  in  the  case 
of  the  Exchange :  "  A  third  case  in 
which  a  sovereign  is  understood  to 
cede  a  portion  of  his  jurisdiction 
is  where  he  allows  the  troops  of 
a  foreign  prince  to  pass  through 
his  dominions.  In  such  case, with- 
out any  express  declaration  waiv- 
ing jurisdiction  over  the  army  to 
which  this  right  of  passage  has 
been  granted,  the  sovereign  who 
should  attempt  to  exercise  it  would 
certainly  be  considered  as  violating 
his  faith.  By  exercising  it,  the  pur- 
pose for  which  the  free  passage 
was   granted   would    be    defeated, 


and  a  portion  of  the  military  force 
of  a  foreign  independent  nation 
would  be  diverted  from  those  na- 
tional objects  and  duties  to  which 
it  is  applicable,  and  would  be 
withdrawn  from  the  control  of 
the  sovereign,  whose  power  and 
whose  safety  might  greatly  depend 
on  retaining  the  exclusive  com- 
mand and  disposition  of  this  force. 
The  grant  of  a  free  passage,  there- 
fore, implies  a  waiver  of  all  juris- 
diction over  the  troops  during 
their  passage,  and  permits  the  for- 
eign general  to  use  that  discipline, 
and  to  inflict  those  punishments 
which  the  government  of  his  army 
may  require."  —  Case  of  the  Ex- 
change,']  Cranch,  1 16-139. 

^The  passage  of  a  detachment  of 
British  troops  through  the  State 
of  Maine,  in  1862,  while  en  route 
to  Quebec.  Canada,  was  authorized 
by  The  United  States  as  a  matter 
of  comity;  in  1875  similar  permis- 
sion was  granted  for  the  passage  of 


84  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

The  practice  is  disfavored,  but  not  absolutely  forbidden,  by- 
international  law.  The  outbreak  of  war,  therefore,  or  the  ex- 
istence of  an  emergency,  may  make  it  necessary  to  resort  to  it 
at  any  time.  Should  such  a  case  occur,  the  principle  of  ex- 
territoriality would  apply  to  a  movement  of  troops  through 
foreign  territory  in  the  same  way,  and  to  the  same  extent,  that 
it  is  applied  in  the  admission  of  a*  ship-of-war  to  a  foreign  port. 
Its  application  would  be  attended  with  greater  difficulty,  how- 
ever, arising  in  part  out  of  the  character  of  the  act  itself,  and 
in  part  from  the  occurrence  of  circumstances,  during  the  pas- 
sage, which  could  not  be  provided  for  in  advance.  This  would 
be  especially  true  if  the  movement  were  effected  by  marching^ 
and  not  by  railway  or  steamer. 

The  moving  force  is  governed,  in  transit,  by  the  military 
laws  and  army  regulations  of  its  own  government,  with  such 
additional  restrictions  as  may  be  stipulated  to  be  observed  in 
the  treaty  or  agreement  authorizing  the  passage.  Offences 
committed  along  the  line  of  march  are  tried  by  courts-martial, 
or  are  punished  summarily,  when  the  offending  and  injured 
persons  belong  to  the  moving  force.  If  the  parties  injured  be 
citizens  of  the  district  traversed,  the  trial  and  punishment  of 
the  offenders  would  be  arranged  for  by  treaty.  As  such  of- 
fences have  a  peculiarly  aggravated  character,  they  should  be 
more  severely  dealt  with  than  if  committed  at  home. 

certain  military  supplies  for  the  use  The  right  of  the  United  States  to 
of  the  Canadian  mounted  police,  a  send  troops  across  the  Isthmus  of 
body  having  a  permanent  military  Panama  is  guaranteed  by  the  treaty 
organization  and  constituting  a  with  New  Granada  of  1846. — Trea- 
portion  of  the  British  colonial  es-  ties  and  Conventions  of  the  U.  S. 
tablishment;  permission  was  also  1S87,  pp.  195-206.  It  has  been  an- 
granted  in  1876  for  the  passage  of  nounced,  in  behalf  of  the  govern- 
a  small  body  of  Mexican  troops  ment  of  the  United  States,  that 
from  Brazos  de  Santiago  to  Mata-  permission  to  transport  troops 
moras,  through  the  territory  of  the  over  its  territory  will  only  be  grant- 
State  of  Texas.  In  1881  the  per-  ed  in  case  of  peaceful  transfer,  de- 
mission of  the  Governor- General  void  of  any  military  object  affecting 
of  Canada  was  obtained  for  the  the  peace  of  any  third  state.  —  I 
passage  of  a  body  of  Michigan  Dig.  Int.  Law,  §  13.  See  also  Revue 
state  militia  through  the  territor)'^  de  Droit  International,  voL  xxi.  p. 
of  the  Dominion  of  Canada,  while  117. 
en  route  from  Detroit  to  Buffalo. 


STATES    AND    THEIR    ESSENTIAL   ATTRIBUTES  85 

Questions  of  purchasing  supplies  in  the  country  passed 
through  are  strictly  regulated  by  treaty,  as  are  similar  ques- 
tions arising  as  to  the  quartering  of  troops,  the  passage  of 
ferries  and  bridges,  and  the  use  of  wells  or  other  sources  of 
water  supply.  When  such  movements  are  made,  as  it  is  im- 
possible to  foresee  and  provide  for  all  cases  of  injury  and 
damage  that  may  occur,  it  is  proper  to  provide,  in  the  prelimi- 
nary treaty,  for  the  indemnification  of  injured  parties,  by  per- 
mitting their  claims  to  be  submitted  in  the  diplomatic  way, 
or  by  arranging  for  the  organization  of  a  commission  having 
power  to  investigate  such  claims,  and  to  determine  the  amount 
of  damage  sustained,  with  a  view  to  its  being  liquidated  by 
the  government  through  whose  agents  it  was  inflicted.' 

(3.)  To  the  Person  of  a  Sovereign,  his  Retinue  and  At- 
tendants, while  Passing  Through  or  Sojourning  in  Foreign 
Territory.  There  are  numerous  instances  of  such  royal  visits, 
and  the  practice  of  making  them  bids  fair  to  continue  in  exist- 
ence, if,  indeed,  it  does  not  become  more  frequent  than  for- 
merly. At  the  present  time  such  visits  are  not  attended  by  the 
political  significance  which  formerly  attached  to  them.  They 
are  either  made  with  great  formality — as  when  a  visit  of  cere- 
mony is  made  or  returned,  or  a  conference  of  sovereigns  is 
arranged,  with  a  view  to  an  exchange  of  opinions  upon  some 
matter  of  serious  international  concern — or  they  may  have  an 
entirely  private  and  informal  character,  the  visiting  sovereign 
Avaiving  many  of  the  honors  and  privileges  to  which  he  is  en- 
titled in  his  sovereign  character. 

If  the  consent  of  the  sovereign  whose  territory  is  visited 
has  been  formally  given,  such  consent  is  held  to  confer 
the  privilege  of   exterritoriality."^      The    visiting   sovereign   is 

'Hall,§  54;  I  Twiss,  §  165;  I  Dig.  contemplate  foreign  sovereigns  nor 

Int.  Law,  §13;  I  Phiilimore,  §§  341,  their  sovereign  rights  as  its  objects. 

342;  I  Halleck,  p.  177;  II  Ibid.  p.  One  sovereign  being  in  no  respect 

178-  amenable  to   another,  and    being 

-  Full  and  absolute  territorial  bound  by  obligations  of  the  high- 
jurisdiction  being  alike  the  attri-  est  character  not  to  degrade  the 
bute  of  every  sovereign,  and  being  dignity  of  his  nation  by  placing 
incapable  of  conferring  extra-ter-  himself  or  its  sovereign  rights  with- 
ritorial  power,  would  not  seem  to  in  the  jurisdiction  ofanother,  can  be 


86 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


permitted  to  exercise  his  functions  as  if  he  were  still  in  his 
own  dominions;  and  he  may  do  any  act  which  he  is  authorized 
to  do  by  the  laws  of  his  own  state,  and  which  is  not  so  repug- 
nant to  the  law  of  the  territory  in  which  he  is  as  to  be  for- 
bidden to  be  exercised  by  its  sovereign.  Such  acts,  however, 
are  presumed  to  have  effect  only  within  his  own  territory,  and 
upon  his  own  subjects.  His  control  over  his  suite  is  not  im- 
paired, and  their  responsibility  to  him  is  in  no  way  affected, 
by  the  fact  of  absence.'  Whatever  articles  of  personal  or 
movable  property  are  carried  with  him  enter  the  foreign  state 
without  inspection  or  payment  of  duty,  and  are  exempt  from 
taxation  and  imposts  of  all  kinds  during  his  sojourn  there.  In 
all  other  respects  the  privilege  of  exterritoriality  applies  to  a 
sovereign,  and  to  his  retinue  and  train,  in  precisely  the  same 
manner,  and  to  the  same  extent,  that  it  does  to  an  ambassador 
and  his  retinue. 


supposed  to  enter  a  foreign  territory 
only  under  an  express  license,  or 
in  the  confidence  that  the  immuni- 
ties belonging  to  his  independent 
sovereign  station,  though  not  ex- 
pressly stipulated,  are  reserved  by 
implication,  and  will  be  extended 
to  him. — Schooner  Exchange  vs. 
McFaddon,7  Cranch,  ii6[i37]. 

If  a  foreign  sovereign  enters  the 
territory  of  a  sovereign  state,  he 
does  so  with  the  knowledge  and 
license  of  its  sovereign,  and  "  that 
license, although  containing  nostip- 
ulation  exempting  his  person  from 
arrest,  is  universally  understood  to 
imply  such  stipulation."  "A  for- 
eign sovereign  is  not  understood  as 
intending  to  subject  himself  to  a 
jurisdiction  incompatible  with  his 
dignity,  and  the  dignity  of  his  na- 
tion, and  it  is  to  avoid  this  subjec- 
tion that  the  license  has  been  ob- 
tained. The  character  to  whom  it 
is  given,  and  the  object  for  which 
it  is  granted,  equally  require  that 
it  should  be  construed  to  impart 
full  security  to  the  person  who  has 
obtained   it.     This  security,  how- 


ever, need  not  be  expressed ;  it  is 
implied  from  the  circumstances  of 
the  case." — Case  of  the  Exchange, 
7  Cranch,  ii6,  137. 

'  To  what  extent  the  judicial 
power  which  attaches  to  a  sover- 
eign in  his  own  dominions  may  be 
exercised  by  him  abroad  has  never 
been  satisfactorily  determined.  In 
the  leading  case  of  Queen  Christina 
of  Sweden,  she  had  formally  ab- 
dicated the  Swedish  crown,  was  re- 
siding in  Paris  where  she  seems  to 
have  enjoyed  the  privileges  of  exter- 
ritoriality.  While  residing  in  Paris, 
in  1657,  she  caused  one  Monalde- 
schi.amemberof  her  suite,  to  be  put 
to  death.  This  act  has  been  univer- 
sally condemned  by  text  writers  of 
authority,  and  the  queen  is  usually 
regarded  as  having  subjected  her- 
self to  the  criminal  jurisdiction  of 
the  French  courts  by  thus  causing 
the  death  of  her  chamberlain.— II 
DeMartens,  Causes  Celebres;  Byn- 
kershoek,  DeForo  Leg.  chap.  iii. ; 
Hallam,  Const.  Hist,  of  England, 
chap,  iii.;  II  Phillimorc'p.  142, 


STATES   AND   THEIR   ESSENTIAL  ATTRIBUTES  8/ 

Should  a  person  of  sovereign  rank  enter  the  territory  of  a 
foreign  state  without  the  permission  of  its  sovereign  or  execu- 
tive authority,  he  is  conceded  most  of  the  immunities  that 
are  extended  to  him  when  such  consent  has  been  obtained.' 
The  circumstances  under  which  such  visits  are  made  may  be, 
and  frequently  are,  so  peculiar  and  exceptional  as  to  make  it 
impossible  to  lay  down  any  definite  rules  on  the  subject.  If 
the  presence  of  such  a  person  is  dangerous  to  the  safety  of  a 
state,  or  involves  its  neutral  obligations  in  any  way,  or  is  offen- 
sive to,  or  threatens  its  relations  with,  friendly  powers,  asylum 
may  be  refused,  and  the  visiting  sovereign  may  be  forbidden 
to  exercise  any  of  his  functions,  or  to  maintain  a  correspond- 
ence with  persons  in  his  own  state,  and  he  may  even  be  com- 
pelled to  quit  the  territory.  If  no  such  consequences  ensue, 
or  are  likely  to  ensue,  the  visit  differs  in  no  important  respect, 
in  so  far  as  the  application  of  the  principle  of  exterritoriality 
is  concerned,  from  one  made  with  the  consent  of  the  sovereign 
of  the  visited  territory.^ 

To  Ambassadors  and  Public  Ministers.  To  the  efficient 
and  successful  performance  of  an  ambassador's  duties,  it  is 
necessary  that  his  person  should  be  held  inviolate,  and  that 
he  should  be  entirely  free  from  responsibility  to  the  govern- 
ment to  which  he  is  accredited.  Without  such  freedom  of 
movement  and  action  it  would  be  impossible  for  him  to  ad- 
equately represent  his  own  government,  or  effectively  interfere 
in  behalf  of  his  fellow-subjects.  This  principle  of  inviolabili- 
ty and  immunity  has  been  recognized  by  all  Christian  states 
since  permanent  legations  were  first  established  in  Europe,  in 
the  fourteenth  century.  It  is  now  so  universally  conceded  as 
not  to  admit  of  question  or  discussion. 

"  Whatever  may  be  the  principle  upon  which  this  immunity 
is  established,  whether  we  consider  '  the  ambassador  '  as  in 
the  place  of  the  sovereign  he  represents,  or,  by  a  political  fic- 

'  Case  of  the  Exchange,  7  Cranch,  ^  Hall,  §  49  ;  I  Twiss,  §  165  ;  Blunt- 

116,   138;    I   Phillimore,  §  342;    II  schli,  §§  135-153,  196-209;  Kliiber, 

Ibid.§§  100-113;  Hall,  §49;  Kliiber,  §§49,  54,  136;  Heffter,  §§42,54;  II 

§  49  ;   II  De  Martens,  §  172.  Phillimore,  §§  104,  105. 


88  THE    ELEiMENTS   OF    INTERNATIONAL   LAW 

tion,  suppose  him  to  be  extraterritorial,  and  therefore,  in  point 
of  law,  not  within  the  jurisdiction  of  the  sovereign  at  whose 
court  he  resides,  still  the  immunity  itself  is  granted  by  the 
governing  power  of  the  nation  to  which  the  minister  is  de- 
puted. This  fiction  of  exterritoriality  could  not  be  erected 
and  supported  against  the  will  of  the  sovereign  of  the  territory. 
He  is  supposed  to  assent  to  it.'" 

The  subject  will'be  more  fully  discussed  in  the  chapter  de- 
voted to  the  privileges  and  immunities  of  ambassadors. 

To  Consuls  and  to  Foreign  Residents  in  Certain  Eastern 
Countries.  From  the  beginning  of  intercourse  with  the  Mo- 
hammedan nations  inhabiting  the  southern  and  eastern  coasts 
of  the  Mediterranean  Sea  it  has  been  found  necessary,  by 
reason  of  the  radical  difference  between  their  legal  and  re- 
r.  ^.  ligious  systems  and  those  prevailing  among  the  Christian  na- 
^^  tions  of  Europe,  to  withdraw  from  the  operation  of  the  local 
laws  such  subjects  of  the  latter  powers  as  were  obliged,  on  ac- 
count of  their  business  or  of^cial  character,  to  reside  in  the 
Levantine  ports  and  commercial  cities.  These  exemptions 
have  been  obtained  in  every  case  by  treaty  stipulations  or 
concessions,  and  they  are  enlarged  and  modified,  from  time  to 
time,  in  the  same  manner.  When  intercourse  became  general 
with  China  and  Japan  similar  concessions  were  obtained  in 
behalf  of  the  subjects  of  the  principal  commercial  nations  of 
Europe  and  America.  The  subject  will  be  treated  at  length 
under  the  head  of  "  Consular  Jurisdiction." 

Exterritoriality;  Application  of  the  Principle  to  Things, 
It  is  proper  to  observe,  in  conclusion,  that  the  principle  of  ex- 
territoriality, as  recognized  at  international  law,  relates  pri- 
marily to  persons,  and  has  to  do  with  things  only  because  of 
their  relation  to  such  persons  as  are  clothed  with  an  immunity 
from  the  operation  of  local  laws.  It  applies  to  the  hotel  of 
an  ambassador,  for  example,  because  it  is  his  official  residence, 
and  it  ceases  to  exist  whenever  he  ceases  to  occupy  it  as  an 
official  residence.     It  applies  also  to  the  legationary  furniture 

>  The  Exchange,  7  Cranch,  116,138. 


N 


STATES  AND    THEIR   ESSENTIAL   ATTRIBUTES  89 

and  to  other  articles  of  personal  property  so  long  as  he  con- 
tinues to  use  them  in  his  official  capacity  as  a  public  minister; 
when  they  are  sold  or  otherwise  disposed  of,  however,  the 
privilege  ceases  to  exist,  and,  with  the  transfer  of  possession, 
the  articles  become  subject,  in  every  respect,  to  the  operation 
of  the  local  law.  Such,  too,  is  the  case  with  a  public  armed 
vessel ;  the  privilege  attaches  to  the  ship  on  account  of  its 
occupation  by  its  officers  and  crew  ;  if,  therefore,  it  be  wrecked 
or  destroyed  and  abandoned  in  the  territorial  waters  of  a  for- 
eign state,  the  privilege  of  exterritoriality  ceases  to  attach  and 
the  ship  becomes  a  mere  article  of  property  and,  as  such,  sub- 
ject to  the  law  of  the  state  in  whose  waters  it  lies.' 


References.  The  theory  of  state  sovereignty  and  jurisdiction  is  de- 
rived directly  from  the  Roman  law.  Upon  the  application  of  that 
theory  to  the  mutual  relations  of  states  is  based  the  claim  of  Grotius  to 
the  honor  of  being  the  founder  of  the  modern  science.  The  first  edition 
of  his  work,  "  De  Jure  Belli  et  Pacis,"  was  published  in  Paris  in  1625. 
It  has  been  translated  into  almost  all  of  the  modern  languages  of 
Europe.  The  last  French  edition  appeared  in  1864.  An  English  trans- 
lation appeared  in  1738.  The  usual  English  edition,  however,  is  that  of  Dr. 
Whewell,  which  was  published  in  1853.  The  formal  or  constitutional 
classification  of  the  powers  of  government  is  of  relatively  recent  origin, 
and  can  be  studied  to  advantage  in  the  constitutions  of  modern  states. 
See  Cooley's  "  Constitutional  Law,"  Cooley's  edition  of  "  Story's  Com- 
mentaries," and  Holmes's  edition  of  Kent  for  the  United  States.  For 
England,  see  Stubbs's  "  Constitutional  History,"  Bagehot's  "English 
Constitution,"  and  the  works  of  Hallam,  Amos,  and  Maine.  The  rules 
regarding  territory  and  territorial  jurisdiction  are  largely  adopted  from 
the  Civil  Law.  The  principle  of  servitudes  is  of  similar  origin,  although 
in  the  doctrine  of  easements  a  modified  form  of  the  principle  is  known 
to  the  Common  Law.  For  an  account  of  the  Law  of  Servitudes,  see 
Morey,  "  Outlines  of  the  Roman  Law,"  pp.  289-292;  Bluntschli,  §§  353- 
359;  I  Phillimore,  pp.  330-332.  For  the  subject  of  the  High  Seas  and 
the  freedom  of  the  sea,  see  Grotius,  "  Mare  Liberum,"  written  in  reply 

'  Hall,  §  55,  p.  195;  the  C//<zr/^/V/z,  don    Titnes  of  January   29,  1879,- 

L.  R.  iv.  Adm.  and  Ecc.  Cases,  93  Woolsey,  §  58  ;    Bluntschli,  §§  333- 

and  96.     See  also  the  case  of  the  336. 
Constitution,  reported  in  the  Lon- 


90  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

to  Seidell's  "  Mare  Clausum."  See  also  I  Azuni,  chaps,  i.-iii. ;  I  Philli- 
more,  pp.  209-224;  Vattel,  chap,  xxiii.  §§  279-294;  Heffter,  pp.  146- 
148;  I  Martens,  G.  F.  De,  §  43,  and  §  18  of  Wheaton's  "  History  of  the 
Law  of  Nations."  The  fiction  of  exterritoriality  is  fully  discussed  in  I 
Halleck,  chap.  vii.  §§  24,26;  Boyd's  Wheaton,  pp.  139,  151  ;  Heffter,  pp. 
86-90;  Creasy,  pp.  176-190,  and  p.  686  ;  Lawrence,  "  International  Law," 
§§  120- 131;  I  Phillimore,  chapters  ix.  x.  and  xi. ;  H  Ibid.  pp.  127-257; 
Walker,  "Science  of  International  Law,"  pp.  221-230;  I  Twiss,  §§  165, 
166,  199-223;  Bluntschli,  §§  69,  126-158,  317-342;  I  Dig.  Int.  Law,  §§  13, 
17a,  17b,  26-40,  92-98;  Dana's  Wheaton,  §§95-110,  notes  58-68. 


CHAPTER  III 
PERFECT   AND   IMPERFECT    RIGHTS— COMITY— CEREMONIAL 

Perfect  Rights.  The  essential  attributes  of  a  state  have 
been  defined  to  be  those  of  sovereignty,  independence,  and 
equahty.  Any  state  right  fairly  deducible  from  any  one  of 
these,  or  from  all  of  them,  is  a  perfect  right.  The  right  to  re- 
sist invasion,  to  an  immunity  from  external  interference  in 
purely  internal  affairs,  and  to  protect  its  citizens  from  wanton 
injury  while  travelling  or  sojourning  abroad  are  examples  of 
perfect  rights,  and  a  state  would  be  said  to  have  a  just  cause 
for  war  if  any  one  of  them  were  deliberately  violated.  It  is 
thus  seen  that  the  denial  of  a  perfect  right  constitutes  an  in- 
vasion of  the  sovereignty  of  the  offended  state,  justifying,  if 
not  atoned  for,  forcible  measures  of  redress.  If  the  sovereign 
rights  of  a  state  can  be  denied,  trespassed  upon,  or  invaded  in 
one  respect,  they  can  in  all  respects,  and  its  sovereignty  and 
independence  would  be  abridged,  and  finally  lost,  by  such  re- 
peated invasions  or  denials.  For  these  reasons  the  rule  has 
received  universal  sanction  that  the  perfect  rights  of  a  state 
can  be  drawn  in  question  or  denied  only  at  the  risk  of  war.' 

'  The  statement  that  whenever  a  the  magnitude  of  the  injury,  and 

nation  has  a  claim,  clearly  founded  without  regard  either  to  its  own 

on  justice,  and  justice  is  denied,  re-  immediate  interest  or  to  political 

sort  must  ultimately  be  had  to  war  considerations  of  a  higher  order, 

for  redress  for  the  injury  sustained  affecting  perhaps   its  foreign   and 

must  be  accepted  with  an  impor-  domestic  concerns,  inflict  upon  it- 

tant   qualification.     The  denial  of  self  the  calamities  of  war,  under 

justice  gives  to  the  offended  nation  the  penalty  of  incurring  disgrace, 

the  right  of  resorting  to  arms,  and  is   a   doctrine   which,  if   generally 

such  a  war  is  just,  so  far  as  it  relates  adopted,  would  keep  the  world  in 

to  the  offended  party.    "  But  to  as-  perpetual    warfare,    and    sink    the 

sert  that  a  nation  must  in  such  a  civilized   nations    of    Christendom 

case,  without  attending  either   to  to  a  level  with   the  savage  tribes 


92  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Imperfect  Rights.  There  is  another  class  of  state  rights 
or  duties  to  which  attention  will  now  be  drawn.  It  has  been 
seen  that  a  state,  in  its  capacity  as  a  body  politic,  possesses 
many  of  the  attributes  of  a  moral  person.  It  may  express 
sympathy,  it  may  perform  acts  of  charity,  humanity,  or  cour- 
tesy, and  may  be  held  morally  responsible  for  their  non-per- 
formance. The  performance  of  such  acts  is  incumbent  upon 
a  state  for  the  same  reason  and  to  the  same  extent  that  it  is 
incumbent  upon  an  individual.  Its  failure  to  perform  them, 
like  a  similar  failure  on  the  part  of  an  individual,  violates  no 
perfect  right,  and  is  therefore  not  punishable,  or  a  proper  sub- 
ject for  forcible  redress.  As  a  nation  is  actuated  to  the  per- 
formance of  these  duties  by  considerations  of  courtesy  ox  goo d- 
tvill,  and  as  a  failure  to  observe  them  does  not  constitute  a 
sufficient  cause  for  war,  they  are  called  imperfect  rights ;  or, 
since  they  are  founded  upon  considerations  of  comity,  or  moral 
obligation,  they  are  sometimes  called  moral  claims} 

Perfect  Rights. 

Classification.  The  perfect  rights  of  a  state  are  susceptible 
of  classification  under  one  of  two  heads. 

First.  The  right  of  a  state  to  a  free  and  independent  ex- 
istence within  its  territorial  limits. 

Second.  The  right  to  be  respected  as  a  sovereign  state  in  its 
intercourse  with  other  states.'^ 

Some  of  the  more  essential  of  the  perfect  rights  and  duties 
of  states  are: 

of  our  forests." — Gallatin  to  Ever-  '  Dr.  Woolsey  was,  I   think,  the 

ett,  II  Gallatin's  Writings,  p.  494.  first  to  use  this  term.     It  explains 

The  action  of  the  President,  vvhicli  the  obligation  more  fully  than  does 

is  criticised   in  the  foregoing  ex-  the  other,  which  is  the  more  gener- 

tract,  related   to  the  measures  re-  ally  used.     For  further  discussion 

sorted  to  with  a  view  to  secure  a  of  the  subject  of  imperfect  rights, 

settlement  of  the   French  indem-  see  p.  116;    see  also  I  Phillimore, 

nity  in   1835  and    1836.     See  also  §§  142,  143;  Vattel,  prelim,  chap.  § 

Pomeroy,  §  79;  I  Halleck,  chap.  iv.  17;  Hall,  §  13. 

§  I,  chap.  xiii.  §  3  ;  Woolsey,  §§  17,         ^Heffter,  pp.  47,  48;    Pomeroy,  § 

18;  Wheaton,  §  60;    I  Phillimore,  79;  I  Halleck,  chap.  iv.  §  i  ;  Wool- 

§§  138-154;  Vattel,  prelim,  chap.,  §§  sey,  §§  17,  18;  I  Phillim.ore,  §§  138- 

17-23-  154. 


RIGHTS— COMITY— CEREMONIAL 


93 


The  Right  of  Self- Preservation.  This  is  called  into  being 
whenever  the  corporate  existence  of  a  state  is  menaced,  and 
corresponds  to  the  individual  right  of  self-defence.  The  dan- 
ger may  be  internal,  as  in  the  case  of  insurrection  or  rebellion, 
or  external,  as  in  the  case  of  invasion,  either  real  or  threatened. 
"The  right  of  self-preservation  is  the  first  law  of  nations,  as  it 
is  of  individuals.  A  society  which  is  not  in  condition  to  repel 
aggression  from  without  is  wanting  in  its  principal  duty  to  the 
members  of  which  it  is  composed,  and  to  the  chief  end  of  its 
institution.  All  means  which  do  not  affect  the  independence 
of  other  nations  are  lawful  to  this  end.  No  nation  has  a  right 
to  prescribe  to  another  what  these  means  shall  be,  or  to  require 
any  account  of  her  conduct  in  this  respect.'" 

In  its  exercise  of  the  right  of  self-preservation  a  state 
organizes  its  land  and  naval  forces  in  time  of  peace  or  war, 
maintains  them  at  such  strength  as  it  may  deem  adequate  to 
its  needs,  and  protects  its  coasts,  harbors,  and  land  frontiers  by 
such  works  of  defence  as  it  may  deem  necessary  to  secure 
them  from  attack.  The  military  establishment  that  is  main- 
tained by  a  particular  state  is  determined  by  its  geographical 
situation,  by  its  institutions,  its  military  policy,  the  character  of 
its  foreign  relations,  and  to  some  extent  by  its  financial  re- 
sources. Any  limitation  upon  such  establishments  must  of 
necessity  be  strictly  internal  in  character.  External  dictation 
in  such  matters  is  ordinarily  not  permissible.  "Armaments 
suddenly  increased  to  an  extraordinary  amount,"  however, 
"  are  calculated  to  alarm  other  nations,  whose  liberty  they 
appear  to  menace.  It  has  been  usual,  therefore,  to  require 
and  receive  amicable  explanations  of  such  warlike  prepara- 
tions; the  answer  will,  of  course,  much  depend  upon  the  tone 
and  spirit  of  the  requisition.'"^ 

The  assertion  of  the  right  of  self-preservation  on  the  part  of 
a  state  involves  the  duty  of    recognizing  the  same  right  in 

'jl  Philliraore,§§  210-220;  I  Twiss,  ton,  §  60;   Woolsey,  §§   17,  37;    I 

§§   106,  108-110;    Walker,  Manual,  Pradier-Fodere,  §§  21 1-235. 

§  32;   I  Halleck,  chap.  iv.  §§  1-7.  *I  Phillimore,  p.  253. 
18-27;  Pomeroy,§§  79, 84-87;  Whea- 


94  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

other  states.  If  a  state  resents  invasion  of  its  sovereign  rights, 
it  is  bound  to  respect  the  territory  and  rights  of  other  states. 
It  cannot  invade  them  itself,  nor  can  it  permit  its  subjects,  or 
others  within  its  jurisdiction,  to  use  its  territory  as  a  base  of 
hostile  operations  against  a  state  with  which  it  is  at  peace. 
Its  power  and  responsibility  are  equal,  and  it  cannot  plead  its 
weakness,  or  the  insufficiency  of  its  municipal  laws,  whenever 
such  hostile  attempts  originate  within  its  jurisdiction.' 

The  Right  of  Reputation.  This  right  presents  itself  in  two 
aspects.  1st.  A  state  is  entitled  to  respect  as  to  its  internal 
affairs.  This  includes  the  recognition  of  its  government  and 
institutions,  of  the  methods  and  agencies  by  which  that  gov- 
ernment is  maintained  and  administered,  and  of  the  officers 
who  compose  it,  each  in  his  proper  function,  from  highest  to 
lowest.  2d.  A  state  is  entitled  to  respect  as  an  independent 
body  politic,  and  as  a  member  of  the  great  family  of  states  in 
which  all  nations  have  equal  rights.  From  this  point  of  view 
a  state  may  be  regarded  as  a  moral  being,  capable  of  acquiring 
and  enjoying  a  good  reputation  ;  entitled,  by  right,  to  im- 
munity from  insult  or  injury  to  such  reputation,  and  liable  to 
the  obligation  of  respecting  the  reputation  of  other  states.  It 
is,  therefore,  its  duty  to  resent  insults  offered  to  its  moral  dig- 
nity, to  its  flag,  which  is  the  visible  symbol  of  its  majesty  and 
power,  and  to  the  ministers  or  public  officials  who  represent 
it  abroad.^ 

The  Enforcement  of  Treaty  Stipulations.  Treaties  are 
voluntary  engagements  entered  into  by  sovereign  states,  by 

'  Woolsey,  §  43  ;  Wheaton,  §  63  ;  I  that  law ;  for  that  law  presents  an 

Halleck,  chap.  iv.  §§  1-4;  Wildman,  entire  system  of  the  relative  rights 

pp.   47,  48;    Hall,  §   88;   Dig.  Int.  and    duties    of    nations,    founded 

Law,  §§  45-68;  I  Piiillimore,  §  264.  throughout  on  the  purest  morality 

According  to  the  pure  spirit  of  the  and   the    most    expanded    philan- 

law  of  nations,  no  nation  gives  her-  thropy,    and    every   part    of    it    is 

self  a  claim  to  call  upon  other  na-  equally  obligatory  on  all    nations, 

tions   for    a   strict   observance    of  — Sullivan's    case,  I   Opinions   of 

their  law  who  does  not  observe  it  Attorney- General,    p.    509    [511], 

strictly   upon    her    own    part,    not  Wirt  (1821). 

only  in  the  particular  class  of  cases  ^I    Halleck,   chap.  v.   §§  i-io; 

in  which   she  makes  the  call,  but  Woolsey,  §§  18,82. 
throughout  the  whole  system  of 


RIGHTS— COMITY— CEREMONIAL  95 

which  mutual  duties  and  obh'gations  are  created  or  defined.  As 
they  operate  to  convert  imperfect  \nio  perfect  rights,  the  viola- 
tion of  a  treaty  stipulation  may  afford  just  cause  for  war.' 

The  Duty  of  a  State  to  Protect  its  Citizens  or  Subjects. 
It  is  a  fundamental  maxim  of  government  that  every  citizen 
owes  a  duty  of  defence  to  his  country  in  time  of  public  dan- 
ger. In  return,  the  citizen  is  entitled  to  the  protection  of  his 
government,  in  person  or  property,  against  injury  and  aggres- 
sion of  every  sort.  This  protection  surrounds  him  at  home, 
and  follows  him  wherever  he  may  travel  or  reside. 

Such  injuries  may  be  committed  :  i.  When  a  state,  through 
its  officers  or  duly  authorized  agents,  acts  directly  against  the 
subject  of  a  foreign  state,  in  violation  of  international  law.  2. 
When  a  state  acts  indirectly,  by  failing  to  secure  adequate 
remedies  to  strangers  who  have  been  injured  by  individuals 
within  its  jurisdiction.'  In  either  case  it  is  the  right  and  duty 
of  the  offended  state  to  protect  its  subjects  in  foreign  parts  by 
every  means  authorized  by  international  law.  It  does  not 
follow,  however,  that  every  case  of  aggression  of  this  kind 
must  of  necessity  result  in  war.  If  an  individual  subject  have 
a  cause  of  complaint  against  a  foreign  state,  to  which  that 
state,  upon  proper  representations,  has  refused,  or  neglected, 
to  apply  a  remedy,  he  applies  for  redress  to  his  own  govern- 
ment. The  case  is  investigated,  and,  if  the  complaint  is  found 
to  be  well  grounded,  redress  is  demanded  in  the  diplomatic 
way.  It  is  only  when  the  cause  of  complaint  is  unusually  seri- 
ous, or  when  redress  has  been  refused  or  needlessly  delayed,  that 
recourse  is  had  to  forcible  methods  in  order  to  obtain  justice.^ 

'  Vattel,  liv.  ii.  chap.  xv.  §§  221,  ^  As  a  state  may  be  required,  in 

222  ;  I  Halleck,  chapter  viii.  §  28  ;  a  proper  case,  to  resort  to  extreme 

Creasy,  §§  41-43;    Kliiber,   §   145;  measures — to  war,  if   need  be — to 

Bluntschli,  §  410.  protect  the  persons  of  its  citizens 

*  Hef?ter,  p.  120;    Halleck,  chap,  abroad,  "  so,  again,  a  state  may  be 

viii.  §§  28,  29;  Grotius,  liv.  ii.  chap,  compromised    by  the  rash,  irnpru- 

XXV.;  Woolsey,  §  112;  Pomeroy,  §§  dent,  or  injurious  acts  of  its  citizens 

204-214;  Wheaton,  §  32  ;  Snow,  pp.  resident  in  the  territory  of  foreign 

62-65;  II  Phillimore,  §§  2-9;  Hall,  states.     These  may  either  be   pri- 

§  87;  Lawrence,  Int.  Law,  §§  113-  vate    citizens,  or  may  be    persons 

115,  1 17-1 18;  Bluntschli,  §  380.  directly    representing    the    state, 


96  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

In  addition  to  its  right  to  protect  its  citizens  abroad,  a  state 
may  demand  that  its  citizens,  in  a  particular  state,  shall  be 
placed  upon  a  footing  of  equality  with  other  resident  for- 
eigners, and  may  complain  if  they  are  unfairly  discriminated 
against  by  any  agent  or  department  of  the  local  government.' 

Measure  of  Reparation.  When  a  state  finds  it  necessary 
to  interpose  in  behalf  of  a  citizen  who  has  been  injured  abroad, 
the  form  and  manner  of  reparation  to  be  demanded  will  be 
determined,  in  accordance  with  the  circumstances  of  the  par- 
ticular case,  by  the  government  of  the  offended  state.  The 
measure  of  satisfaction  which  a  state  may  insist  upon  consists, 
in  general,  in  a  reparation  for  the  injury  or  wrong  committed, 
the  adequate  reimbursement  of  the  damage  sustained  by  the 
party  injured,  and  a  reasonable  but  sufficient  guarantee  against 
its  recurrence.^ 

Limitations  upon  the  Duty  of  a  State  to  Afford  Extra- 
Territorial  Protection.  The  duty  of  a  state  to  protect  its 
citizens  abroad  is  subject,  in  practice,  to  two  important  quali- 
fications ;  these  are  :  First,  Citizens  of  one  country  travelling 
or  resident  in  another  are  not  only  subject  to  the  local  laws, 
but  are  bound  to  observe  them  in  good  faith  and  in  every  de- 
tail. They  are  not  entitled  to  the  protection  of  their  own  gov- 
ernment when  their  conduct  has  been  such  as  to  amount  to  a 
violation  of  such  local  laws.  "  It  is  a  perfectly  well-under- 
stood principle  of  law  that  no  citizen  of  a  foreign  nation— ex- 
cepting, perhaps,  in  certain  cases,  a  representative  clothed 
with    diplomatic    privileges  —  is  free  from    the  obligation    of 

whether  in  a  civil  or  mihtary  ca-  for   whatever  purpose   citizens   of 

pacity.      That  a    state   should  be  one  state  may  sojourn  in  the  terri- 

ready  to  protect  every  one  of  its  tory  of  another,  and  however  they 

members   when   travelling  abroad  demean   themselves,  the  so-called 

under   the   assurance  of  that  pro-  'honor'  of  their  state  compels  it 

tection,  and  when  conducting  them-  to  interfere  in  their  hehaU,  even  if 

selves  with  proper  regard   to  the  the  result  should  be  war." — Amos, 

laws   and   customs  of   the   people  Science  of  Law,  p.  330. 
with    whom    they  take    up    their         MI  Dig.   Int.  Taw,  §§  189,  190a; 

abode,  is  a   proposition  which  no  Hall,  §  87  ;  Snow,  pp.  62-65. 
one  would  contest.     But  the  prop-         ^  Bluntschli,  §  380;    Hall,  §    87; 

osition  has  been  too  frequently  ex-  II  Dig.  Int.  Law,  §§  189-190. 
tended,  in  practice,  to  signify  that, 


RIGHTS— COMITY— CEREMONIAL 


97 


conforming  himself  to  the  laws  of  the  country  in  which  he  is 
residing."'  Second,  If  an  injury  be  inflicted  upon  a  citizen 
of  one  state  in  the  territorial  jurisdiction  of  another,  the  party 
injured,  before  demanding  the  interposition  of  his  own  gov- 
ernment, must  first  resort  to,  and  exhaust,  the  remedies  pro- 
vided by  the  authorities  of  the  locality  or  place  in  which  the 
injury  has  been  inflicted.  It  is  only  when  such  recourse  has 
been  had,  without  result,  that  the  case  will  be  taken  up  by  the 
state  of  which  such  injured  party  is  a  citizen.^ 

It  is  proper  to  add,  in  this  connection,  that  the  amount  of 
protection  afforded  abroad  may,  or  may  not,  be  equal  to  that 
afforded  at  home.  This  results  from  the  fact  that  no  two 
states  have  precisely  the  same  degree  of   civilization,  or  are 


'  Mr.  Adams's  statement  of  the 
Geneva  case,  Creasy,  p.  187 ;  II 
Phillimore,  pp.  3,  4;  Creasy,  §  191  ; 
II  Dig.  Int.  Law,  §  189  ;  Hall,  §  87  ; 
Heffter,  §  62;  Bluntschli,  §  388. 

^  A  citizen  of  one  nation,  wronged 
by  the  conduct  of  another  nation, 
must  seek  redress  through  his  own 
government.  His  sov^ereign  must 
assume  the  responsibility  of  pre- 
senting his  claim  or  it  will  not  be 
considered.  —  United  States  vs. 
Diekelman,  92  United  States, 
520,  524.  Before  a  citizen  be- 
comes entitled  to  the  aid  of  his 
government  in  obtaining  redress 
for  wrongs  alleged  to  have  been 
suffered  by  him  at  the  hands  of  a 
foreign  government,  he  must  have 
first  sought  redress  in  vain  through 
the  tribunals  of  the  offending  gov- 
ernment.— XIII  Opinions  of  Attor- 
ney-General, p.  547.  This  rule  may  be 
departed  from,  however,  where  the 
offending  government,  by  the  acts 
of  its  proper  organ,  relieves  the  in- 
jured party  from  the  obligation  of 
pursuing  such  remedy. — Ibid.  The 
rule  that,  before  a  citizen  of  a  coun- 
try is  entitled  to  the  aid  of  his  gov- 
ernment in  obtaining  redress  for 
wrongs  done  him  by  another  gov- 
ernment, he  must  have  sought  re- 

7 


dress  in  vain  through  the  judicial 
tribunals  of  that  other  government, 
is  inapplicable  where  the  offending 
government,  by  the  acts  of  its  prop- 
er organ,  relieves  the  injured  party 
from  the  obligation  of  pursuing 
such  course.  The  passenger -tax 
of  §2  per  head,  levied  by  the  State 
of  Panama,  under  authority  from 
New  Granada,  upon  all  vessels  em- 
barking or  disembarking  passen- 
gers in  that  state,  so  far  as  it  af- 
fected citizens  of  the  United  States 
crossing  the  isthmus,  is  in  viola- 
tion of  the  thirty-fifth  article  of  the 
treaty  of  1848. — XIII  Opinions  of 
Attorney-General,  p.  547.  By  the 
law  of  nations,  if  the  citizens  of  one 
state  do  an  injury  to  the  citizens 
of  another,  the  government  of  the 
offending  subject  ought  to  take 
every  reasonable  measure  to  cause 
reparation  to  be  made  by  the  of- 
fender. But  if  the  offender  is  sub- 
ject to  the  ordinary  processes  of 
law,  it  is  believed  this  principle 
does  not  generally  extend  to  oblige 
the  government  to  make  satisfac- 
tion, in  case  of  the  inability  of  the 
offender. — I  Ibid.  p.  106.  See  also 
II  Phillimore,  pp.  4-7  :  Hall,  §  87  ; 
II  Dig.  Int.  Law,  §  189,  241-247; 
Pomeroy,  §  205. 


98  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

able,  or  willing,  to  insure  precisely  the  same  degree  of  protec- 
tion to  aliens  resident  within  their  territories.  If,  therefore, 
an  individual  ventures  into  a  country  where  life  and  property 
are  less  secure,  or  in  which  there  is  less  respect  for  law  and 
order,  than  in  his  own  state,  he  can  only  demand  from  his  own 
government  that  measure  of  protection  which  is  afTorded  to 
foreigners  generally  in  the  state  in  which  he  chooses  to  travel 
or  reside ;  and  it  is  only  when  the  injury  complained  of  is 
serious — involving  danger  to  life,  or  insecurity  to  property  or 
business — that  the  government  can  be  expected  to  interpose 
in  his  behalf.  A  person  who  voluntarily  enters  the  territory 
of  a  state  in  which  the  standards  of  enlightenment  are  less 
high  than,  or  different  from,  those  prevailing  in  his  own  coun- 
try, does  so  of  his  own  free  will,  and  has  no  valid  ground  for 
complaint,  so  long  as  his  life  and  property  are  reasonably  se- 
cure, and  he  is  placed  upon  the  same  footing  in  respect  to  pro- 
tection as  other  resident  foreigners.' 

The  Right  of  Interference.  In  international  affairs  non- 
intcrfcreiice  is  the  rule,  interference  the  exception.  This  fol- 
lows from  the  definitions  of  state  sovereignty  and  independence. 
The  recognition  of  any  other  rule  would  strike  at  the  very 
foundation  of  international  law,  and  would  render  the  main- 
tenance of  general  peace  impossible.  For  this  reason  the  right 
of  interference  is  denied  save  in  certain  extremely  exceptional 
cases,  in  which  the  circumstances  calling  for  interference  must 
be  of  such  a  character  as  not  only  to  justify  that  course,  but 
to  render  the  adoption  of  any  other  impossible.'' 

The  instances  of  such  interference,  in  history,  are  but  too 
frequent.  In  a  vast  majority  of  cases  they  have  not  been  jus- 
tified by  existing  facts,  and  have  led  to  results  in  every  way 
more  deplorable  than  those  which  they  were  intended  to  pre- 
vent.   "The  list  includes  the  invasion  of  Holland  by  the  Prus- 


'Hall.  §  87  ;   II  Dig.  Int.  Law,  §§         M  Phillimore,  §  392;   Pomeroy, 

189-249  ;  Snow,  pp.  62,63.     For  as-  §§  202,  203;  Snow,  p.  57;  I  Halleck, 

sistance  in  respect  to  the  collection  chap.  iv.  §§  2-13;   Woolsey,  §§  43- 

of  public  debts,  see  Pomeroy,  §213;  51;  Dana's  Wheaton,  §§63-71. 
Hall,  §  87  :  II  Dig.  Int.  Law,  §  231. 


RIGHTS— COMITY— CEREMONIAL  99 

sians  in  1787,  to  restore  to  his  old  prerogatives  as  stadtholder 
the  Prince  of  Orange,  who  was  brother-in-law  to  the  Prussian 
king.  It  includes  the  infamous  and  pernicious  attacks  on  Po- 
land by  Austria,  Prussia,  and  Russia,  the  invasion  of  France  in 
behalf  of  Louis  XVI.  by  the  Prussians  and  Austrians  in  1791, 
and  the  interference  of  the  Holy  Alliance  with  the  popularized 
governments  of  Spain,  Naples,  Sicily,  and  Piedmont,  in  1820 
and  the  three  following  years.  The  historical  student  of  these 
transactions  will  be  fully  qualified  to  form  a  judgment  as  to 
whether  such  proceedings  are  calculated  to  promote  or  to  im- 
pair the  general  benefit  of  the  community  of  nations."  ' 

The  Duty  of  Non  -  Interference.  As  states  are  entitled 
to  a  complete  immunity  from  interference  in  their  internal 
concerns,  a  corresponding  duty  devolves  upon  them  to  re- 
frain from  interfering  in  the  internal  affairs  of  other  states. 
This  is  called  the  duty  of  non-interference.  Save  in  the  cases 
presently  to  be  discussed,  no  occasion  less  urgent  than  self- 
preservation,  or  the  infringement  of  treaty  stipulations,  can 
justify  such  acts  of  interference.'^ 

If  the  right  of  interference  exists,  therefore,  as  a  perfect 
right  at  international  law,  it  can  be  accepted  and  sanctioned 
only  with  important  reservations,  and  can  be  exercised  only  in 
accordance  with,  and  subject  to,  limitations  of  the  severest 
character.  It  may  be  said  to  exist,  to  a  qualified  extent,  in  the 
following  cases: 

In  Self-Defence.  A  state  is  not  only  independent  within 
its  own  territory,  but  is  entitled  to  an  absolute  immunity  from 
external  interference,  and  from  acts  of  hostility  or  annoyance 
originating  beyond  its  boundaries,  but  carried  into  effect  within 
its  territory.  An  insurrectionary  movement  within  its  juris- 
diction may  be  largely  supported  and  maintained  b)'  persons 
residing  beyond  its  borders,  and  the  offending  state  may  be 
unable  or  unwilling  to  lend  its  aid  towards  their  prevention. 
In  such  an  event  a  state  is  authorized,  in  the  exercise  of  the 

'  Creasy,  p.  289.  Halleck,  chap.  iv.  §  2 ;  Hall,  §§  88, 

nVoolsey,  §  43;  Wheaton,  §  63;  89;  Lawrence,  International  Law, 
Snow,  p.    57 ;    Pomeroy,  §   202 ;  \     §§  74-89, 


lOO  THE   ELEME3SITS   OF   INTERNATIONAL    LAW 

right  of  self-defence,  to  invade  the  territory  of  the  offending 
state,  and  secure  redress  for  the  injury  it  has  received.  To 
justify  such  a  course,  however,  the  cause  of  offence  must  be 
clear,  redress  must  have  been  demanded  and  plainly  denied, 
and  the  wrong  must  be  of  such  a  character  as  to  render  neces- 
sary a  resort  to  forcible  measures  of  redress.' 

Marauding  Expeditions.  As  a  consequence  of  its  sover- 
eignty and  independence,  a  state  is  entitled  to  an  immunity 
from  incursions  by  expeditions,  or  marauding  parties,  whose 
base  of  operations  is  in  the  territory  of  another  state ;  when 
such  incursions  occur,  the  injured  state  will  expect,  and  may 
demand,  a  prompt  disavowal  of  the  act,  with  reparation  for  its 
consequences,  and  the  punishment  of  its  perpetrators."  When 
the  sovereignty  of  a  territory  permits  it  to  be  made  the  base 
of  hostilities,  by  outlaws  and  savages,  against  a  country  with 
which  such  sovereign  is  at  peace,  the  government  of  the  latter 
country  is  entitled,  as  a  matter  of  necessity,  to  pursue  the 
assailants  wherever  they  may  be,  and  to  take  such  measures  as 
are  necessary  to  put  an  end  to  their  aggressions.' 

The  Capture  of  St.  Mark's,  Florida.  In  1818  a  body  of 
United  States  troops,  under  the  command  of  General  Jackson, 
advanced  upon  and  captured  St.  Marks,  Florida,  a  post  within 
the  territorial  jurisdiction  of  Spain,  from  which  it  was  alleged 
that  hostile  Indians  had  obtained  supplies  and  ammunition 
with  which  to  make  inroads  upon  the  inhabitants  of  the  State 
of  Georgia.  During  the  invasion  two  persons,  Arbuthnot  and 
Ambrister,  who  were  known  to  be  British  subjects,  were  ar- 
rested by  Jackson,  after  hostilities  had  ceased,  and  brought 
before  a  court-martial  charged  with  aiding  and  abetting  the 
Creek  Indians  in  war  with  the  United  States,  and  inciting  the 
Indians  to  war;  Arbuthnot  was  also  charged  with  being  a  spy. 
Both  were  convicted:  Arbuthnot  was  sentenced  to  be  hung, 
and  the  sentence  was  approved  and  carried  into  effect  by  Gen- 

'I  Twiss,  §§  107,  108-110;  Walk-  I  Phillimore,  §§  393-398  ;  Hall,  §§ 

er,  Manual,  I  32;    I  Halleck,  chap.  91,92. 

iv.  §§  18-27  ;>omeroy,  §§79,  84-87;  Mil  Dig.  Int.  Law,  §  398;  I  Ibid. 

Woolsey,  §  43 ;  Wheaton,  §§  62,  63 ;  §§  50-506.               '  I  Ibid.  §  500b. 


RIGHTS— COMITY— CEREMONIAL  lOI 

eral  Jackson ;  the  other  offender  was  less  severely  punished. 
The  British  Government  refrained  from  taking  any  further 
notice  of  the  afTair,  at  the  time,  than  to  institute  an  inquiry  into 
the  facts  connected  with  the  punishment  of  its  subjects.  The 
United  States  Government  strongly  disapproved  of  General 
Jackson's  action,  and  stood  ready  to  disown  his  proceedings 
and  make  reparation  for  the  injury.'  Somewhat  earher, 
Amelia  Island  on  the  northeast  coast  of  Florida,  which 
had  become  a  place  of  resort  for  slavers,  freebooters,  and 
smugglers,  whose  predatory  operations  had  been  directed 
against  the  people  of  the  State  of  Georgia,  was  captured  by 
United  States  troops,  and  its  inhabitants  dispersed,  on  the 
ground  that  the  government  of  Spain  was  either  unable  or 
unwilling  to  restrain  the  lawless  acts  of  persons  within  its 
territorial  jurisdiction.  This  action  was  made  the  subject  of 
an  energetic  protest  on  the  part  of  Spain,  and  gave  rise  to  an 
extended  controversy,  which  was  terminated  by  the  purchase 
of  Florida  by  the  United  States  in  1819.'' 

Case  of  the  "  Caroline^  This  vessel  had  been  employed  by 
the  Canadian  insurgents  to  carry  munitions  of  war  and  persons 
taking  part  in  the  insurrection  from  the  New  York  side  of  the 
Niagara  River  to  the  Canadian  side.  A  Canadian  armed  force 
was  sent  to  capture  her,  expecting  to  find  her  in  Canadian 
waters ;  but,  learning  that  she  was  on  the  American  side,  they 
went  over  and  destroyed  her.  In  the  correspondence  which 
ensued  between  the  governments  of  Great  Britain  and  the 
United  States  Mr.  Webster  contended  that,  for  such  an  in- 
fringement of  territorial  rights,  the  British  Government  must 
show  "  a  necessity  of  self-defence,  instant,  overwhelming,  and 
leaving  no  choice  of  means  and  no  moment  for  deliberation"; 
and  it  should  further  appear  that  the  Canadian  authorities,  in 
acting  under  this  exigency,  "  did  nothing  unreasonable  or  ex- 
cessive."    Lord  Ashburton  admitted  the  correctness  of  Mr. 

'Sumner,   Life   of   Jackson,   pp.  State  Papers,  Misc.  p.  801;  II  Gal- 

53-54;   I    Dig.  Int.  Law,  §    50b;   I  latin's  Writings,  p.  69. 

Benton,  Thirty  Years  in  the  United  ^  I  Dig.  Int.  Law,  §  50a. 
States  Senate,  p.   167;    II   Amer. 


I02  THE    ELEMENTS    OF   INTERNATIONAL   LAW 

Webster's  doctrine,  contended  that  the  circumstances  came  up 
to  the  statement  of  it,  and  "  regretted  that  some  explanation 
and  apology  for  the  occurrence  were  not  immediately  made." 
This  was  accepted  by  the  United  States  as  satisfactory.* 

In  Accordance  with  Treaty  Stipulations.  It  has  been  seen 
that  certain  questions  of  strictly  internal  concern  may  properly 
be  made  the  subject  of  treaty  guarantee.  Such  are  the  main- 
tenance of  a  particular  government  or  constitution,  the  perma- 
nent neutrality  of  a  state,  or  its  existence  within  certain  terri- 
torial limits.  When  the  particular  state  of  affairs  which  has 
been  made  the  subject  of  guarantee  is  menaced  with  change, 
or  when  its  existence  is  threatened  in  any  way,  by  force  applied 
from  without,  or  originating  within  the  guaranteed  territory, 
it  becomes  the  duty  of  the  guarantor  to  interfere,  and  to  carry 
into  effect  the  stipulations  of  the  treaty.  Interference  under 
such  circumstances  is  both  just  and  legal.  It  is  limited  in 
character  and  amount  by  the  terms  of  the  treaty  which  au- 
thorizes it,  and  it  becomes  unlawful,  and  must  cease,  when  the 
cause  of  danger  is  removed  and  the  internal  affairs  of  the  stat? 
have  been  restored  to  their  normal  condition.^ 

To  Assist  a  State  in  Suppressing  an  Insurrection  or  Re- 
bellion. International  law  is  essentially  conservative  in  charac- 
ter. It  recognizes  an  existing  state  of  affairs,  and  opposes, 
and  is  slow  to  recognize,  changes  effected  by  violent  and 
revolutionary  methods.     Interference  in  favor  of  insurgents  is 

'Dana's  Wheaton,  pp.  526,  527,  interfere  to  assist  in  the  repression 
note;  Walker,  Manual,  Int.  Law,  of  disturbance.  England  and  the 
pp.  87,  88.  In  1842  the  existing  United  States,  by  the  treaty  of  1850, 
laws  were  so  amended  by  Congress  agree  to  interfere  in  certain  cases 
as  to  confer  jurisdiction  on  the  in  Nicaragua.  The  United  States, 
Federal  courts  to  make  such  use  by  its  treaty  of  1867,  with  Nicara- 
of  the  writ  of  habeas  corpus  as  gua,  is  also  obliged  to  interfere 
would  enable  the  United  States  when  the  case  exists  which  is  con- 
Government  to  perform  its  inter-  templated  by  the  sixteenth  arti- 
national  obligations.  —  I  Dig.  Int.  cle  of  that  instrument.  See  also 
Law,  §§  21,  50c;  III  Ibid.  §  350.  Wheaton,  §§  73-75;  Pomeroy,  § 
^  The  United  States,  in  its  treaty  203;  I  Halleck,  chap.  iv.  §§  5-8; 
of  1 846  with  New  Granada,  guaran-  I  Phillimore,  §  399;  HefTter,  §  45; 
teed  the  sovereignty  of  the  latter  Lawrence,  Int.  Law,  §§  77-79,  83; 
state.     In   1885   it  was  obliged  to  III  Dig.  Int.  Law,  §§  287-297.  • 


RIGHTS— COMITY— CEREMONIAL  IO3 

never  sanctioned,  and  when  undertaken  by  a  state  is  equivalent 
to  a  declaration  of  war  against  the  state  within  whose  territory 
the  rebelhon  exists.  Not  only  is  armed  interference  in  behalf 
of  insurgents  not  justifiable,  but  the  furnishing  of  any  assist- 
ance, direct  or  indirect,  or  even  a  failure  to  strictly  observe 
neutral  obligations,  is  a  just  cause  of  offence.  In  cases  of  in- 
terference in  behalf  of  a  central  government,  the  initiative 
cannot  be  taken  by  the  interfering  state.  Assistance  may  only 
be  furnished  on  the  request  of  the  belligerent  government,  and 
then  only  in  accordance  with  the  terms  of  the  invitation.' 

Intervention  in  Behalf  of  an  Oppressed  Population  and 
Against  the  Government  of  a  State.  From  the  definition  of 
a  state  it  is  clear  that  any  interference  between  a  state  and  its 
subjects  is  opposed  to  the  fundamental  principle  of  inter- 
national law.  It  should  be  an  event  of  the  rarest  occurrence, 
and  would  be  justified  only  in  cases  of  the  greatest  emergency. 
As  a  matter  of  fact,  it  has  occurred  but  too  frequently,  and  has 
rarely  been  warranted  by  existingcircumstances.  Arule  deduced 
from  the  experience  of  nations  would,  therefore,  express  the 
conditions  under  which  the  law  of  nations  had  been  disregard- 
ed and  set  at  defiance,  or  evaded,  rather  than  obeyed.  It  is 
possible,  however,  for  a  case  to  exist  in  which  a  part  of  the 
people  of  a  state  may  be  so  oppressed,  or  persecuted,  as  to  war- 
rant other  states  in  interfering  upon  grounds  of  humanity. 
Such  a  case  would  be  likely  to  occur  when  a  part  of  the  popu- 
lation of  a  state  was  of  a  different  race,  or  religion,  from  the 
great  majority  of  their  fellow-subjects ;  the  acts  of  oppression 
originating  in  race  or  religious  prejudice.  The  mere  fact  that 
a  people  belonging  to  a  particular  race,  or  professing  a  par- 
ticular religious  belief,  are  placed  at  some  disadvantage  by  the 
law  or  policy  of  a  state,  constitutes  no  valid  ground  for  remon- 
strance, still  less  for  interference.  To  justify  acts  of  positive 
interference  one  or  more  of  the  following  conditions  must  be 
fulfilled : 

'  Wheaton,  §§  63, 64-73;  Woolsey,  Lawrence,  Int.  Law,  §  84;  Westlake, 
§  46;  I  Phillimore,  §§  400, 401,409-  pp.  122-125;  Vattel,  liv.  ii.  chap. 
415;  Heffter,  §  45;  Creasy,  §  297;     iv.  §§  54-56. 


104  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

(i.)  A  remedy  for  the  wrongs  complained  of  must  first  be 
sought  in  the  way  of  protest  or  remonstrance. 

(2.)  The  oppression  or  persecution  must  be  so  serious  in 
character,  and  so  great  in  amount,  as  to  incur  the  condemnation 
of  the  civilized  world  ;  and  the  act  of  interference  must  be  par- 
ticipated in,  or  sanctioned  by,  all  the  states  of  Christendom. 

(3.)  The  interference  must  be  limited  to  the  application  of 
a  remedy  to  the  wrong  complained  of,  and  should  cease  so 
soon  as  substantial  guarantees  are  furnished  that  the  wrongful 
acts  will  not  be  repeated.' 

Interference  in  Behalf  of  the  Balance  of  Power.  The 
term  Balance  of  Poivcr  is  applied  to  a  rude  equilibrium  of 
political  forces,  which  was  established  at  an  early  date  among 
the  different  states  of  Europe,  the  preservation  of  which  is 
sanctioned  by  their  general  consent.  It  originated  in  an  in- 
stinctive exercise  of  the  right  of  self-defence,  and  its  continued- 
existence  is  rather  a  matter  of  policy  and  expediency  than  of 
strict  right.  It  is  justified,  apart  from  the  considerations  of 
self-preservation  that  are  involved,  by  the  fact  that  it  has 
powerfully  contributed  to  preserve  the  general  peace  of  Eu- 
rope on  numerous  occasions  when  that  peace  has  been  threat- 
ened by  the  selfish  schemes  of  ambitious  states. 

Its  right  to  exist  cannot  be  deduced  from  any  principle  of 
international  law,  unless  the  state  system  of  Europe  be  regard- 
ed as  a  kind  of  alliance  or  confederation,  having  for  its  purpose 
the  maintenance  of  peace  and  the  prevention  of  useless  and 
unnecessary  wars.  It  came  into  being,  largely  as  a  matter  of 
necessity,  so  soon  as  the  great  states  of  Europe  began  to  as- 
sume something  of  their  present  territorial  form,  and  was  devel- 
oped out  of  repeated  instances  of  the  exercise  of  the  right  of  self- 
preservation  by  those  states  as  they  found  themselves  obliged, 
from  time  to  time,  to  impose  checks  upon  the  power  of  ambi- 
tious neighbors.    The  first  wars  waged  in  its  behalf  were  those 

'  Heffter,  §  45  ;  Woolsey,  §  51  ;  I  Dig.  Int.  Law,  §§  45,  47a  ;  Mackin- 
Phillimore,  §§  400,  401,  409-415;  tosh,  Review  of  the  Causes  of  the 
Kliiber,  §  51,  note;  Creasy,  §  308;  Revolution  of  1688,  chap.  x. ;  Vat- 
Lawrence,  Int.  Law,  §§   79,  80 ;    I  tel,  liv.  ii.  chap.  iv.  §  56. 


RIGHTS— COMITY— CEREMONIAL  I05 

carried  on  by  Francis  I.  of  France,  in  the  first  half  of  the  six- 
teenth century,  to  resist  the  dangerous  and  increasing  power 
of  the  Emperor  Charles  V.,  whose  control  of  the  almost  un- 
limited resources  of  Spain,  Germany,  and  the  Netherlands  was 
a  constant  menace,  not  only  to  the  peace  of  Europe,  but  to 
the  sovereignty  and  independence  of  the  other  European 
states.  From  that  epoch  until  181 5,  a  period  of  more  than 
two  hundred  and  fifty  years,  wars  were  of  such  frequent  occur- 
rence, and  were  so  long  continued,  as  to  cause  a  state  of  per- 
manent peace  to  be  regarded  as  a  highly  desirable,  but  ex- 
tremely unlikely,  contingency.  Whether  the  greater  number 
of  these  wars  were  due  to  attempts  to  overthrow  or  to  defend 
the  principle,  and  whether  wars  would  have  been  more  or  less 
frequent  had  the  principle  never  been  asserted,  need  not  be 
discussed  here. 

For  the  forty  years  succeeding  the  Congress  of  Vienna,  in 
181 5,  the  peace  of  Europe  was  certainly  due  to  a  constant  and 
successful  observance  of  the  principle — a  result  in  every  way 
memorable  as  the  first  instance  in  which  peace  had  been  main- 
tained on  the  continent  of  Europe  for  so  long  a  time  since  the 
beginning  of  modern  history.  It  is  as  obvious,  however,  that 
most  of  the  great  wars  that  have  occurred  since  the  Peace  of 
Paris,  in  1856,  have  been  due  to  the  non-observance  or  abuse 
of  the  principle. 

The  maintenance  of  peace  in  Europe  during  the  greater  part 
of  the  first  half  of  the  present  century  was  not  obtained  with- 
out corresponding  sacrifices.  The  principle  of  the  balance  of 
power  during  this  period  was  not  simply  recognized,  or  passive- 
ly acquiesced  in,  as  a  desirable  fact ;  on  the  contrary,  it  was 
vigorously  asserted,  and  to  a  great  extent  maintained,  by  an 
alliance,  or  concert  of  action,  on  the  part  of  the  great  powers. 
This  organization  was  conservative  in  character,  and  seems  to 
have  originated  in  an  agreement  of  the  crowned  heads  at 
Paris,  in  September,  181 5,  which  has  become  known  in  history 
as  the  Holy  Alliance.  The  concert  thus  established  was  main- 
tained and  perpetuated  by  the  various  congresses  which  were 
held  during  the  decade  next  ensuing.     These  alliances  were 


I06  THE  ELEMENTS   OF   INTERNATIONAL   LAW 

intended,  not  only  to  maintain  the  equilibrium  as  established 
at  the  Congress  of  Vienna,  but  to  discountenance  revolutionary 
movements,  and,  by  a  resort  to  measures  of  a  repressive  and 
reactionary  character,  to  prevent  the  general  adoption  of  even 
desirable  constitutional  reforms. 

At  present,  owing  to  the  great  increase  in  military  strength 
which  has  taken  place  in  some  of  the  more  pow^erful  states  of 
Europe,  and  to  a  corresponding  diminution  in  the  importance 
of  other  states  which  were  formerly  powerful,  the  existence  of 
the  equilibrium  is  in  constant  danger,  its  permanent  guarantee 
is  impossible,  and  the  balance  is  maintained  from  day  to  day 
with  great  and  ever-increasing  difficulty.' 

De  Martens'  Statement  of  the  Principle  of  the  Balance 
of  Power.  "  Every  state  has  a  natural  right  to  augment  its 
power,  not  only  by  the  improvement  of  its  internal  constitu- 
tion and  the  development  of  its  resources,  but  also  by  external 
aggrandizement,  provided  that  the  means  employed  are  law- 
ful ;  that  is,  that  they  do  not  violate  the  rights  of  another. 
Nevertheless,  it  may  so  happen  that  the  aggrandizement  of  a 
state  already  powerful,  and  the  preponderance  resulting  from 
it,  may,  sooner  or  later,  endanger  the  safety  and  liberty  of  the 
neighboring  states.  In  such  case  there  arises  a  collision  of 
rights  which  authorizes  the  latter  to  oppose  by  alliances,  and 
even  by  force  of  arms,  so  dangerous  an  aggrandizement,  with- 
out the  least  regard  to  its  lawfulness.  This  right  is  still  more 
essential  to  states  which  form  a  general  society  than  to  such 
as  are  situated  at  a  great  distance  from  each  other ;  and  this 
is  the  reason  why  the  powers  of  Europe  make  it  an  essential 
principle  of  their  political  system  to  watch  over  the  balance  of 
power  in  Europe.  It  is  clear,  also,  that  it  is  not  always  the 
extent  of  the  acquisition  that  ought  to  determine  the  danger. 
Everything  here  depends  on  circumstances.     The  annihilation 

1  Woolsey,  §§  44-47  ;  Wheaton,  §§  Twiss,  §  112.     The  term  "  Balance 

63-66  ;  Pomeroy,  §  203  ;  I  Halleck,  of  Power  "  came  into  general  use 

chap.  iv.  §  9;  I   Pradier-Fodere,  §§  after  the  Peace  of  Utrecht  in  1713. 

267-286;  I  Phillimore,  pref.  2d  ed.  —I  Twiss,  §  112.     See  also  vol.  xx. 

pp.  vii.-xxxii. ;  Ibid.  §§  402-407.     I  Revue  de  Droit  Int.  pp.  5-25. 


RIGHTS— COMITY— CEREMONIAL  I07 

of  a  state,  which  at  present  serves  as  a  counterpoise,  may  be- 
come as  dangerous  to  the  general  safety  of  the  neighboring 
states  as  the  immediate  aggrandizement  of  another  state."  ' 

The  subjoined  rules  are  based  upon  the  exhaustive  discus- 
sion of  the  subject  by  Vattel . 

(i.)  "  The  mere  fact  that  a  state  has  acquired,  and  is  acquir- 
ing, power  greatly  preponderant  over  its  neighbor,  does  not 
of  itself  instMy  other  states  in  making  war  upon  it  for  the  pur- 
pose of  reducing  its  power. 

(2.)  "  Under  such  circumstances  other  states  are  justified  in 
watching  the  preponderant  state  with  cautious  vigilance,  and 
in  forming  leagues  with  each  other  for  mutual  defence  from  it. 

(3.)  "  If  the  preponderant  state  commits  acts  of  injury 
against  its  neighbors,  or  any  of  them,  or,  by  the  arrogance  of 
its  pretensions,  the  tone  of  its  public  despatches  and  mani- 
festoes, or  by  any  other  course  of  conduct,  beyond  the  mere  in- 
crease of  its  strength,  it  clearly  threatens  to  attack  or  oppress 
its  neighbors,  then  other  states  are  justified  in  combining  to- 
gether and  in  making  war  upon  it,  so  as  to  prevent  it  from 
committing  disturbance  of  the  general  security  of  the  common- 
wealth of  civilized  nations,  or  of  the  security  and  independence 
of  any  of  them."" 

These  are  to  be  accepted,  however,  with  certain  limita- 
tions* 

(i.)  The  internal  development  of  the  resources  of  a  country 
has  never  been  considered  a  pretext  for  such  an  intervention, 
nor  has  its  acquisition  of  colonies  or  dependencies  at  a  dis- 
tance from  Europe.  It  seems  to  be  held,  with  respect  to  the 
latter,  that  distant  colonies  and  dependencies  weaken,  and  al- 
ways render  more  vulnerable,  the  metropolitan  state. 

(2.)  Although  the  increase  of  the  wealth  and  population  of 
a  country  is  the  most  effectual  means  by  which  its  power  can 

'Creasy,  "First  Platform  of  In-  Westlake,  pp.  120-122;  Vattel,  liv. 

ternational  Law,"  pp.  279,  280,  cit-  iii.  chap.  iii.  §§  42-49. 

ing  De   Martens,  §§   122-124.     See  ^Creasy,   p.  285;  Vattel,  liv.  iii. 

also  La  Theorie  de  I'fiquilibre  Eu-  chap.  iii.  §§  42-50;  Lawrence,  Int. 

ropeenne,  by  Ernest  Nys,  vol.  xxv.  Law,  §  85  ;  Dana's  Wheaton,  §§  63- 

Revue  de   Droit   Int,  pp.  34-58;  68;  Kliitier,  §  42. 


I08  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

be  augmented,  such  an  augmentation  is  too  gradual  to  excite 
alarm. 

(3.)  The  injustice  and  mischief  of  admitting  that  nations 
have  a  right  to  use  force  for  the  express  purpose  of  retarding 
the  civilization  and  diminishing  the  prosperity  of  their  inoffen- 
sive neighbors  are  too  revolting  to  allow  such  a  right  to  be  in- 
serted even  in  the  lax  code  of  international  law. 

(4.)  Finally,  therefore,  interferences  to  preserve  the  balance 
of  power  have  been  confined  to  attempts  to  prevent  a  sov- 
ereign already  powerful  from  incorporating  conquered  prov- 
inces into  his  territory,  or  increasing  his  territory  by  marriage 
or  inheritance,  or  exercising  a  dictatorial  influence  over  the 
councils  of  an  independent  state.' 

The  Primacy  of  the  Great  Powers;  the  Concert  of  Eu- 
rope. In  connection  with  the  European  balance  of  power,  it 
is  proper  to  mention  at  this  point  another  principle  of  inter- 
national political  action  which  has  come  into  being  largely 
within  the  present  century.  This  principle  is  called  the  Con- 
cert of  Europe,  and  it  grew  out  of  a  predominance  of  influence 
among  the  principal  states  of  Europe,  which  has  been  appro- 
priately called  the  Primacy  of  the  Great  Powers.  It  has  been 
seen  that  all  sovereign  states  are,  from  the  point  of  view  of 
international  law,  regarded  as  equal  in  respect  to  the  number 
and  extent  of  their  respective  rights  of  sovereignty.  In  point 
of  power  and  influence,  however,  it  has  been  seen  that  they  are 
very  far  from  equal ;  their  influence  depending  upon  their  ter- 
ritorial extent,  their  wealth  and  population,  and  the  strength 
of  their  military  and  naval  establishments.  Admitting  such 
preponderance  to  exist  in  behalf  of  the  great  powers,  it  follows 
that,  in  matters  as  to  which  there  is  identity  of  interest,  or  a 

'  Essay  by  N.  W.  Senior,  on  "  In-  balance  among  the  several  states 

terference  to  Support  the  Balance  of  Europe  in  respect  to  their  pos- 

of  Power,"  in  No.  T]  of  the  Edin-  sessions  and  acquisitions  in  Asia, 

burgh  Review,  cited  by  Creasy,  pp.  Africa,  and  the  islands  of  the  sea,  a 

285,  286.     The  principle  of  the  Eu-  disturbance  of  which  is  as  prompt- 

ropean   balance  of  power,  as  dis-  ly  and  keenly  felt  as  if  it  had  oc- 

cussed  by  text  writers,  no  loniL^^er  curred  on  the  continent  of  Europe, 
stands   alone.     There  is   a  similar 


RIGHTS— COMITY— CEREMONIAL  IO9 

substantial  agreement  in  foreign  policy,  their  united  authority 
may  be  exerted  with  a  view  to  constrain  less  powerful  states 
to  follow  a  particular  line  of  conduct;  and  they  may,  by  the  in- 
fluence which  they  are  able  to  bring  to  bear,  compel  a  particu- 
lar state  to  do,  or  refrain  from  doing,  a  particular  thing:  as  to 
refrain  from  declaring  war,  or  to  bring  a  particular  war  to  a 
close,  upon  certain  conditions,  or  even  to  bring  about  certain 
constitutional  changes  or  internal  reforms.  The  leading  states 
of  Europe  constitute  such  a  primacy,  and  their  agreement 
upon  a  particular  line  of  policy  is  called  the  Concert  ©f  Europe. 
This  concerted  action  may  be  exercised,  informally  through 
their  respective  foreign  of^ces,  by  diplomatic  agencies,  or,  for- 
mally, in  congresses  or  conferences,  in  a  manner  presently  to 
be  described.  The  establishment  of  the  kingdom  of  Greece 
in  1832,  the  establishment  of  a  Danish  prince  upon  the  Greek 
throne,  upon  the  abdication  of  King  Otho  in  1862,  the 
foundation  of  the  kingdom  of  Belgium  in  1839,  and  the  at- 
tempts made,  at  various  times  within  the  present  century,  to 
obtain  constitutional  reforms  in  Turkey,  are  examples  of  such 
concerted  action.' 

Spheres  of  Influence,  The  term  "spheres  of  influence" 
applies  to  portions  of  territory  lying  within  certain  well-defined 
boundaries,  and  occupied  by  uncivilized  races,  within  each  of 
which  the  influence  of  a  particular  European  state  is  para- 
mount. The  practice  of  establishing  spheres  of  influence, 
which  is  of  very  recent  origin,  amounts,  in  fact,  to  a  distribu- 
tion of  uncivilized  territory  among  the  principal  states  of  Eu- 
rope by  treaties  defining  the  boundaries  of  the  areas  within 
which  their  influence  shall  be  supreme.  These  treaties,  in  the 
preparation  of  which  the  people  of  the  distributed  territory 
are  not  consulted,  contain  stipulations  binding  the  states  which 
are  parties  to  their  operation  to  refrain  from  extending  the 
influence  of  one  state  within  the  sphere,  or  territorial  area, 
allotted  to  another.'     As  against  third  powers,  not  parties  to 

J  Lawrence,  Essays  on  Modern  In-  ^  Westlake,  pp.  187-189;  Law- 
ternational  Law, second  ed.chap.v.  rence,  Int.  Law,  §§95,  loi,  103,  104; 
pp.  208-234;  Westlake,  pp.  92-101.     vol.xx.  Revue de Droit  Int.  pp.  5-35. 


no  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

the  treaty  of  distribution,  these  agreements  are,  of  course,  in- 
operative. How  extensive  the  influence  exerted  in  a  particular 
case  shall  be,  the  form  and  manner  of  its  exercise,  whether  by 
the  state  itself,  acting  through  recognized  governmental  agen- 
cies, or  by  the  interposition  of  commercial  companies,  and  the 
question  whether  it  shall  ripen  into  a  protectorate,  or  become 
a  dependency  of  the  predominant  state,  are  matters  which  are 
left  to  the  determination  of  the  state  whose  influence  is  pre- 
dominant in  a  particular  territory. 

The  Monroe  Doctrine 

The  political  principle  which  has  become  generally  known 
as  the  Monroe  Doctrine  has  never  been  regarded,  or  even  sug- 
gested, as  a  rule  of  international  law.  Like  the  principle  of  the 
European  Balance  of  Power,  however,  it  concerns  more  than  a 
single  state  in  its  operation  and  has  been  made  the  subject  of 
diplomatic  intercourse,  and  is,  for  that  reason,  entitled  to  a 
place  in  a  work  professing  to  treat  of  the  relations  of  sovereign 
states  and  of  their  intercourse  with  each  other.' 

During  the  period  of  the  Napoleonic  wars,  Spain  was  deeply 
engaged  in  European  affairs  and  her  dependencies  in  America 
took  this  occasion  to  assert  their  independence,  which  was  ac- 
complished, in  most  cases,  without  serious  resistance  on  the 
part  of  the  mother-country.  After  a  proper  time  had  elapsed 
in  each  case  the  United  States  recognized  their  independence, 
and,  although  Spain  continued  to  regard  them  as  dependen- 
cies, it  was  found  to  be  impossible  to  reduce  them  to  submis- 
sion without  the  assistance  of  other  European  powers. 

When  the  Emperor  Napoleon  was  overthrown  in  1815,  the 
sovereigns  of  Russia,  Austria,  and  Prussia  entered  into  a  league 
at  Paris,  called  the  Holy  Alliance,  to  which  France  became  a 
party  at  the  Congress  of  Aix-la-Chapelle  in   1818.     England, 

'  The  Monroe  Doctrine   has  for  America  in  some  respects  resem- 

itsobjects  the  maintenance  of  peace  bHng   that  borne  by  the  principle 

on  the  western  continent  and  the  of   the  Balance   of  Power   to  the 

preservation  of  the  American  states  states  of  Europe,  and  has  the  same 

in  their  integrity.     In  this  respect  claim    to    consideration    from    the 

it  bears  a  relation  to  the  states  of  point  of  view  of  international  law. 


RIGHTS— COMITY— CEREMONIAL  III 

although  invited  to  accede  to  the  convention,  declined  to  be- 
come a  member  of  the  alliance,  or  to  participate  in  its  acts  or 
deliberations.'  Although  the  ostensible  purpose  of  the  agree- 
ment was  to  secure  the  subordination  of  politics  to  the  maxims 
of  Christianity,  its  real  purpose  is  now  known  to  have  been  to 
afford  support  to  European  governments  in  the  suppression  of 
revolutionary  uprisings  and  to  repress  agitation  in  behalf  of 
liberal  reforms.  In  pursuance  of  this  purpose  a  reactionary 
government  was  established  in  Naples  ;  somewhat  later  it  sup- 
ported France  in  an  armed  intervention  in  Spain,  as  a  result 
of  which  a  republican  government  which  had  been  established 
there  was  overthrown  and  the  absolute  government  restored  to 
power.  It  was  then  proposed  to  overthrow  the  republican  in- 
stitutions which  had  been  established  in  the  Spanish  American 
states  and  to  restore  them  to  their  former  position  as  Euro- 
pean dependencies.  This  policy  was  strongly  opposed  by 
Great  Britain  who  declared  "  that  she  would  consider  any  in- 
tervention, by  force  or  menace,  in  the  affairs  of  these  states,  as 
a  reason  for  recognizing  them  without  delay.'"'  The  English 
prime-minister,  Mr.  Canning,  brought  the  matter  to  the  atten- 
tion of  the  United  States  Government,  and  suggested  that  suit- 
able steps  be  taken  to  prevent  such  intervention  in  American 
affairs. 

After  consulting  Jefferson,  Madison,  John  Quincy  Adams, 
and  other  leading  statesmen  of  the  time.  President  Monroe 
embodied  tlie  following  statements  in  his  annual  message  to 
Congress  in  December,  1823  :  "  The  occasion  has  been  judged 
proper  for  asserting  as  a  principle,  in  which  the  rights  and  in- 
terests of  the  United  States  are  involved,  that  the  American 
continents,  by  the  free  and  independent  condition  which  they 
have  assumed  and  maintained,  are  not  to  be  considered  as  sub- 
jects for  future  colonization  by  any  European  power."'    Else- 

'  For  the  text  of  this  agreement,  'l    Phillimore,    §   405;     Dana's 

see   Alison's  Life   of  Lord  Castle-  Wheaton,  §67,  note  36;  Woolsey, 

reagh,  vol.  iii,  p.  66  ;  sec  also  Law-  §§  46-48  ;  Creasy,  §  124. 

rence.  Essays  on  Modern  Interna-  ^  I    Dig.  Int.  Law,  §  57  ;    Rush,  I 

tional  Law,  second  ed.  p.  215,  note.  Residence  at  the  Court  of  London. 


112     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

where  in  the  same  message  he  states :  "  We  owe  it  therefore 
to  candor  and  to  the  amicable  relations  existing  between  the 
United  States  and  these  powers  to  declare  that  we  should  con- 
sider any  attempt  on  their  part  to  extend  their  system  to  any 
portion  of  this  hemisphere  as  dangerous  to  our  peace  and 
safety.  With  the  existing  colonies  and  dependencies  of  any 
European  power  we  have  not  interfered  and  shall  not  inter- 
fere. But  with  the  governments  who  have  declared  their  in- 
dependence and  maintained  it,  and  whose  independence  we 
have  on  great  consideration  and  just  principles  acknowledged, 
we  could  not  view  any  interposition  for  the  purpose  of  op- 
pressing them,  or  in  any  other  manner  controlling  their  des- 
tiny, than  as  a  manifestation  of  an  unfriendly  disposition  tow- 
ards the  United  States." ' 

These  declarations,  which  have  become  known  as  the  "  Mon- 
roe Doctrine,"  have  never  received  express  legislative  sanction, 
and,  therefore,  do  not  constitute  a  part  of  the  municipal  law 
of  the  United  States.  Nor,  in  a  similar  sense,  are  they  rules 
of  international  law."  They  have  been  frequently  cited,  how- 
ever, by  the  Executive,  as  an  expression  of  the  permanent 
foreign  policy  of  the  United  States,  and  have  received  the 
support  of  the  political  departments  of  the  government  and 
the  approval  of  the  American  people.^ 

The  declaration  in  respect  to  colonization  proceeded  upon 

'  President  Monroe's  Message  of  the  policy  of  the  country  on  a  sub- 
December  2,  1823,  Annual  Regis-  ject  of  paramount  and  permanent 
ter,  Ixv.  interest ;  indeed  Congress  has  nev- 

'^  It  should  be  borne  in  mind  that  er  been  willing  to  commit  the  na- 

the    declarations     known    as    the  tion  to  any  compact  or  pledge  on 

Monroe   Doctrine   have    never  re-  the  subject,  or  to  any  specific  dec- 

ceived  the  sanction  of  an   act  or  laration    of   purpose   or   methods, 

resolution    of    Congress,   and    for  beyond  the  general  language  of  the 

that   reason  form    no  part  of  the  message. — I  Dig.  Int.  Law,  §  57. 
municipal  law  of  the  United  States;         ^  Woolsey,  §  48;  Creasy,  §§  125- 

nor  do  they  have  any  of  that  au-  128;  Calvo  (ed.  1870),  p.  204;  Pom- 

thority    which    European    govern-  eroy,  §  57  ;  Wheaton,  §§  67,68  ;  For. 

ments  attach  to  a  royal  ordinance.  Rel.  of  the  United  States,  18S2,  pp. 

They  are,  in  fact,  only  the  declara-  271-283,  302-314  ;    vol.  xxviii.  Re- 

tions  of  an  existing  administration  vue    de    Droit    International,   pp. 

of  what   its  own  policy  would  be,  301-329,  502-525. 
and  what  it  thinks  should  ever  be 


RIGHTS— COMITY— CEREMONIAL  1 1 3 

the  assumption  that  every  part  of  the  territory  upon  the 
American  continent  formed  a  part  of,  or  was  embraced  in,  the 
territorial  limits  of  some  then  existing  state,  and  that,  as  a 
consequence,  no  territory  remained  in  the  western  hemisphere 
which  could  be  made  the  subject  of  occupation,  or  coloniza- 
tion, without  invading  the  territory  of  a  sovereign  state.  Such 
an  attempt  to  plant  colonies  in  any  portion  of  the  western 
hemisphere  would,  therefore,  be  met  and  resisted  by  the  state 
whose  territories  were  invaded,  and  the  European  power 
making  the  attempt  might,  or  might  not,  incur  the  disap- 
probation, or  active  opposition,  of  the  United  States.  The 
question  whether  the  United  States  would  interfere,  or  refrain 
from  interference,  in  a  case  of  attempted  colonization,  is  one 
which  would  be  determined  by  that  government  in  accordance 
with  the  peculiar  circumstances  of  the  case.' 

The  doctrine  has  never  been  interpreted  to  mean,  however, 
that  the  United  States  would  lend  its  aid  in  every  case  of  dis- 
pute between  a  Spanish  American  republic  and  a  European 
state.  Nor  has  it  been  regarded  as  a  dormant  treaty  of  al- 
liance, to  come  into  operation  upon  the  occurrence  of  war  be- 
tween an  American  state  and  a  European  power,  to  which  the 
United  States  is  bound  to  become  a  party  against  its  judg- 
ment, or  in  opposition  to  its  will ;  it  is  only  when  something 
in  the  nature  of  coercion  has  been  undertaken,  when  some  at- 
tempt has  been  made  on  the  part  of  a  European  power  "  to 
extend  their  system  to  any  portion  of  this  hemisphere,"  or 
when  there  has  been  "  interposition  for  the  purpose  of  op- 
pressing an  American  republic  "  that  a  case  calling  for  inter- 
ference may  be  said  to  arise. 

Case  of  Yucatan.     This  is  illustrated  by  the  case  of  Yuca- 

'  Two  years  later,  at  the  suggest-  gress,  but  declined  to  commit  itself 

ion  of  some  of  the  Spanish  Amer-  to  any  particular  line  of  policy,  or 

ican  states,  a  congress  was  called  to   accept,    in    advance,   any   con- 

at  Panama  to  take  into  considera-  elusions  which  might  be  adopted, 

tion    the    means    of    carrying  the  or   favored,   by    the   conference. — 

Monroe  Doctrine  into  effect.     The  See  the  Panama  Congress  of  1826, 

United    States    Government    sent  vol.  iv.  of  the  Int.  Amer.  Conf.  of 

two   representatives   to  this  con-  1890. 


114  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

tan,  in  1848.  In  his  annual  message  to  Congress  for  that  year 
President  Polk  announced  that  the  sovereignty  of  Yucatan 
had  been  offered  to  Great  Britain,  Spain,  and  the  United 
States,  and  recommended  that  steps  be  taken  to  prevent  the 
absorption  of  Yucatan  in  the  dominions  of  any  European 
power.  No  action  was  taken  by  Congress  looking  to  the  adop- 
tion of  the  policy  recommended  by  the  Executive,  upon  the 
ground,  as  stated  by  Mr.  Calhoun,  that  the  case  was  one  to 
which  the  Monroe  Doctrine  did  not  apply.* 

The  French  Occupation  of  Mexico.  The  most  striking  ap- 
plication of  the  doctrine,  however,  is  to  be  found  in  the  re- 
sistance offered  by  the  United  States  to  the  project  of  the 
Emperor  Napoleon  III.  to  place  Maximilian,  an  Austrian 
prince,  upon  the  throne  of  Mexico.  The  constitutional  gov- 
ernment of  President  Juarez,  which  had  been  established  by 
the  people  of  Mexico,  refused,  in  1861,  to  recognize  the  valid- 
ity of  certain  debts,  contracted  in  Europe  by  an  insurrection- 
ary government  under  Miramon,  which  had  been  recognized 
by  certain  European  powers  as  the  de  facto  government  of 
Mexico.  England,  France,  and  Spain,  acting  in  behalf  of  their 
subjects,  who  were  creditors  of  Mexico,  agreed  to  take  joint 
possession  of  certain  Mexican  ports,  and  to  collect  and  apply 
the  revenues  to  the  liquidation  of  these  claims.  It  was  a  con- 
dition of  the  undertaking  that  none  of  the  parties  to  the  agree- 
ment should  make  any  acquisitions  of  territory,  or  exercise 
any  influence  upon  the  internal  affairs  of  Mexico  that  was  cal- 
culated to  prejudice  the  right  of  the  people  to  choose  and  con- 
stitute freely  its  form  of  government. 

As  soon  as  the  troops  landed  at  Vera  Cruz  the  designs  of  the 
French  Government  became  apparent,  and  England  and  Spain 
withdrew.  Although  the  United  States  was  then  entering  the 
most  critical  period  of  her  history,  her  resources  being  taxed  to 
their  utmost  in  quelling  a  rebellion  at  home,  she  immediately 
demanded  an  explanation  of  France,  and  received  the  assurance 
that  the  sole  purpose  of  the  invasion  was  to  enforce  the  settle- 

'  Woolsey,  §  48 ;  I  Dig.  Int.  Law,  §§  57, 72. 


RIGHTS— CO^rITY— CEREMONIAL  tl5 

merit  of  the  just  claims  of  French  subjects.  In  1863,  however, 
as  a  consequence  of  the  armed  intervention  of  France,  Maxi- 
milian was  placed  upon  the  throne  of  Mexico,  and  was  sup- 
ported in  that  position  by  the  French  army  of  occupation. 

The  United  States  continued  to  recognize  the  government 
of  President  Juarez,  and  urged  France,  in  the  strongest  terms, 
to  withdraw  her  troops  from  Mexico,  but,  by  reason  of  her 
own  war,  was  unable  to  insist  upon  their  removal.  So  soon  as 
peace  was  restored,  however,  the  United  States  insisted  upon 
the  removal  of  the  French  army  of  occupation,  and  concen- 
trated a  large  force  of  troops  on  the  Rio  Grande  frontier  in 
support  of  her  demand ;  as  a  consequence  of  such  insistence, 
the  French  troops  were  withdrawn  from  Mexico.' 

The  Venezuelan  Boundary.  Another  illustration  of  the  ap- 
plication of  this  doctrine  is  afforded  by  the  recent  contro- 
versy between  Great  Britain  and  Venezuela  in  respect  to  a 
disputed  question  of  boundary  between  the  latter  state  and 
British  Guiana.  The  official  cause  of  difference  in  this  case 
arose  more  than  sixty  years  ago,  and  the  constant  endeavor  of 
Venezuela  has  been  to  secure  an  amicable  settlement  of  the 
difficulty.  Arbitration  has  been  proposed,  and  the  United 
States  has,  on  several  occasions,  tendered  its  good  offices,  and 
has  urged  upon  Great  Britain  the  propriety  of  such  a  settle- 
ment of  the  controversy,  but  without  result.  All  attempts  to 
obtain  an  honorable  settlement  having  failed,  Venezuela,  in 
1887,  recalled  her  minister  from  London. 

Great  Britain  having  subsequently  evinced  a  disposition  to 
enforce  her  claim  to  the  territory  in  dispute,  correspondence 
with  the  British  ministry  was  renewed,  and  President  Cleve- 
land, in  his  annual  message  to  Congress  in  1895,  suggested  a 
method  by  which  an  amicable  settlement  of  the  question  could 
be  brought  about.  This  correspondence  has  resulted  in  the 
execution  of  a  treaty  between  Great  Britain  and  Venezuela  by 
which  the  question  of  disputed  boundary  has  been  referred  to 
a  board  of  arbitration  for  settlement.^ 

'I  Dig.  Int.  Law,  §  58;  III  Ibid.  ^See  also  the  articles  by  J.  B. 
§  318.  Moore,  in    vol.   xxviii.   Revue    de 


t» 


Il6  THE   ELEMENTS   OF    INTERNATIONAL   LAW 


-*  Imperfect  Rights. 

Nature  and  Character.  The  term  "  imperfect  rights"  has 
ah-eady  been  explained.  The  distinction  between  perfect  and 
imperfect  rights  has  chiefly  to  do  with  their  sanction,  or  obli- 
gatory force,  and  can  be  best  explained,  perhaps,  by  a  com- 
parison with  the  corresponding  provisions  of  municipal  law. 
A  perfect  right,  from  the  point  of  view  of  municipal  law,  is 
one  which  is  enforced  by  the  state ;  either  by  the  imposition 
of  a  penalty  for  its  violation,  or  by  withholding  its  sanction,  or 
approval,  of  an  act  which  is  not  in  conformity  to  its  terms. 
Imperfect  rights,  on  the  other  hand,  are  those  prescribed  by 
usage,  or  sanctioned  by  considerations  of  politeness,  civility, 
or  good -will,  and  are  enforced,  or  their  observance  is  made 
general,  by  the  rules  of  polite  society  or  the  requirements  of 
good  breeding.  The  person  and  property  of  the  citizen,  for 
example,  are  protected  from  assault,  injury,  or  spoliation  by 
the  enactment  and  enforcement  of  appropriate  criminal  laws; 
these,  therefore,  correspond  to  perfect  rights  at  international 
law.  The  obligation  to  return  a  salute,  or  a  social  visit,  or  to 
give  a  polite  answer  to  a  question,  is  one  for  which  municipal 
law  fails  to  provide  a  sanction  ;  it  is  a  "  duty"  to  return  salutes 
or  social  visits,  but  it  is  a  duty  which  is  not  enforceable  at  law; 
so,  too,  one  who  tenders  a  salute,  or  makes  a  social  visit,  has  a 
"  moral  claim  "  to  a  return  of  the  civility  in  either  case,  but  he 
has  no  cause  of  action  for  which  the  courts  of  the  state  will 
provide  a  remedy.  These  last  correspond  to  imperfect  rights, 
or,  as  they  are  sometimes  properly  called,  "duties"  or  "  moral 
claims  "  at  international  law." 

Droit  International,  pp.  301-329;  pelling  those  who  refuse   to  fulfil 

and  by  Th.  Barclay,  in  vol.  xxviii.  the  correspondent  obligation.   The 

Ibid.   pp.  502-525 ;   Foreign   Rela-  perfect    obligation    is   that   which 

tions  U.  S.  1895,  pp.  542-546,  1480-  gives   to    the    opposite    party  the 

1491  ;  Ibid.  1896,  p.  254.  right  of  compulsion  ;  the  imperfect 

'  Vattel  classifies  state  rights  into  gives  him  only  a  right  to  ask." — 

internal   and    external;   the   latter  Vattel,  prelim,  chap.  p.  Ixii.  §  17; 

into  perfect  and  imperfect  rights,  liv.  ii.  chap,  i.;  Woolsey,  §§  22-25; 

"The  perfect  right  is  that  which  is  Hall,  §  13;   Lawrence,  Int.  Law,  § 

accompanied  by  the  right  of  com-  72  ;  I  Halleck,  pp.  47,  156. 


RIGHTS— COMITY— CEREMONIAL  1 1  / 

Imperfect  rights  are  reciprocal  in  character  and  are  said  to 
rest  upon  the  comity  of  nations.  Although  they  derive  their 
support  from  considerations  which  are  rather  moral  than  legal, 
or  political  in  character,  they  are  none  the  less  obligatory  upon 
states  in  their  intercourse  with  each  other.  While,  as  has  been 
seen,  the  denial  of  an  imperfect  right,  or  a  failure  to  recognize 
a  moral  claim,  does  not  constitute  a  just  cause  for  war,  a  state 
declining  to  recognize  them  and  to  be  bound  by  their  require- 
ments in  its  relations  with  other  states  would  suffer  seriously 
in  reputation  as  a  consequence  of  such  neglect. 

The  following  are  some  of  the  more  important  of  these  im- 
perfect rights  or  duties  : 

(a.)  The  Duty  of  Humanity.  A  state,  in  the  performance 
of  this  duty,  has  chiefly  to  do  with  individuals  who  are  obliged 
to  seek  shelter  in  its  territory  from  acts  of  hostility  or  from 
the  perils  of  the  sea.  The  cases  of  the  crews  of  wrecked  ves- 
sels, or  those  of  ships-of-war  or  merchant  vessels  seeking  ref- 
uge from  a  superior  force  of  the  enemy,  and  of  bodies  of  de- 
fenceless troops  fleeing  across  a  neutral  frontier  to  escape 
capture,  are  illustrations  of  the  performance  of  this  duty. 

The  duty  of  humanity,  however,  is  not  of  exclusive  applica- 
tion to  individuals.  "  If  a  nation  is  suffering  under  a  famine, 
all  others  having  a  quantity  of  provisions  are  bound  to  relieve 
its  distress,  yet  without  thereby  exposing  themselves  to  want.'" 
"  The  like  assistance  is  due  whatever  be  the  calamity  by  which 
a  nation  is  afflicted.  Whole  sections  of  countries  are  some- 
times devastated  by  floods,  and  cities  and  towns  destroyed  by 
fires  and  earthquakes,  leaving  vast  numbers  of  people  destitute 
of  the  means  of  shelter  and  subsistence.  It  is,  first,  the  duty 
of  their  own  government  to  provide  for  these  wants ;  but  not 
infrequently  the  calamity  is  so  great  that  the  government  is 
unable  to  give  its  aid  to  the  extent,  and  within  the  time  re- 
quired, to  render  its  aid  efficacious.  In  such  cases  the  laws  of 
humanity  would  impose  a  duty  on  others.  In  many  instances 
of   this  kind,  however,  the  active  charity  of   individuals  and 

'  I  Halleck,  p.  406;  Vattel,  liv.  ii.  chap.  i. 


Il8  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

communities  renders  any  action  on  the  part  of  the  govern- 
ments of  other  states  unnecessary.  But  a  government  may 
always  stimulate  and  assist  such  charity,  and  by  thus  reflect- 
ing and  giving  effect  to  the  general  feelings  of  its  people,  man- 
ifest its  sympathy  and  generosity."  '  Of  such  a  character  was 
the  assistance  rendered  by  the  government  of  the  United 
States  in  transporting  to  India,  to  Ireland,  and  to  Cuba  and 
Asia  Minor  the  contributions  of  provisions  spontaneously  of- 
fered by  the  American  people. 

{b.)  The  Right  of  Asylum.  Every  state,  as  a  necessary  con- 
sequence of  its  sovereignty  and  independence,  has  the  right  to 
determine  what  persons,  outside  of  its  own  citizenship,  shall 
be  permitted  to  enter  its  territories  either  for  purposes  of  resi- 
dence, or  as  temporary  sojourners.^  On  the  other  hand,  it 
may  be  said  that  no  individual,  save  in  a  limited  number  of 
cases  presently  to  be  described,  has  a  right  to  demand  such 
admission  to  the  territory  of  a  foreign  state.  The  state  may 
admit,  or,  for  reasons  of  its  own,  may  decline  to  admit,  or  may 
even  exclude  from  its  territory,  any  person  or  persons  whose 
presence  is  dangerous  to  its  safety,  or  prejudicial  to  its  rela- 

'  I  Halleck,  pp.  406-411 ;  Vattel,  tutes,  kidnapped  persons,  or  others 

liv.  ii.  chap.  i.§§  3-10;  Heffter,  §  63.  brought   into  the   territory  of  the 

°  Hall,  §  63;  Heffter,  §§  62,  63;  United  States  against  their  will; 
Kluber,  §§  79,  80;  For.  Rel.  of  the  the  Acts  of  May  6,  1882  (22  Ibid. 
United  States,  1879,  p.  965;  An-  58),  July  5,  1884  (23  Ibid.  115),  Sep- 
nuaire.de  rinst.de  Droit  Int.  1888,  tember  13,  1888  (25  Ibid.  476),  Oc- 
p.  245;  vol.  XX.  Revue  de  Droit  In-  tober  i,  1888  (Ibid.  504),  May  5, 
ternational,  p.  498.  The  policy  of  1892  (27  Ibid.  25),  and  the  Treaty  of 
the  United  States  in  respect  to  im-  March  17,  1894  (28  Ibid.  158),  pro- 
migration  was  much  more  liberal  hibit  the  introduction  of  Chinese  la- 
in the  early  part  of  its  history  than  borers;  and  the  Acts  of  February  26, 
it  is  at  present.  In  recent  years,  1885  (23  Ibid.  332),  March  3,  1891  (26 
with  the  rapid  increase  in  popula-  Ibid.  1084),  and  March  3,  1893  (27 
tion,  the  tendency  has  been  to  re-  Ibid.  569),  prohibit  the  admission 
strict  immigration  in  respect  to  of  contract  laborers.  Save  for  the 
certain  classes  of  persons,  for  rea-  authority  conferred  by  these  stat- 
sons  set  forth  in  the  statutes  im-  utes  the  Federal  government  is 
posing  the  restrictions.  The  fol-  without  power  to  prevent  the  ad- 
lowing  are  examples  of  such  mission  of  aliens,  to  supervise  their 
restrictive  legislation  :  The  Acts  movements,  or  to  compel  their  de- 
of  June  23,  1874  (18  Stat,  at  Large,  parture  or  migration  from  its  terr 
251),  and  March  3,  1875  (Ibid.  477),  ritory, 
prohibit  the  admission   of   prosti- 


RIGHTS— COMITY— CEREMONIAL  1 19 

tions  with  friendly  powers.  A  state  may  therefore  prescribe 
in  its  municipal  laws  what  persons  or  classes  of  persons  may 
come  within  its  boundaries;  it  may  permit  some  to  become 
citizens  and  may  deny  that  privilege  to  others ;  it  may  also 
prescribe,  in  a  similar  manner,  what  rights  of  residence  or 
domicile  may  be  acquired  by  aliens  coming  within  its  borders/ 
Case  of  Political  Refugees.  It  is  the  practice  of  most  mod- 
ern states  to  receive  political  offenders  and  persons  exiled 
from  their  states  of  nativity  for  political  reasons.  Such  asylum 
is  accorded  even  against  the  protest  of  the  state  from  which 
they  have  fled,  and  is  maintained,  if  need  be,  in  disregard  of 
its  demand  for  their  extradition,  or  surrender,  but  upon  con- 
dition, however,  that  the  laws  and  institutions  of  the  state  in 
which  such  offenders  have  taken  refuge  shall  be  respected,  and 
that  its  territory  shall  not  be  made  the  base  of  operations 
against  the  peace  and  safety  of  a  friendly  state.  It  has  been 
seen  that  such  asylum  is  not  demandable  as  a  matter  of  strict 
right,  nor,  if  it  be  abused,  can  its  continuance  be  made  the 
subject  of  a  similar  demand ;  the  mere  fact  that  it  has  been 
accorded  gives  rise  to  no  obligation  on  the  part  of  the  state  by 
which  it  was  conferred.' 

'  Hall,  §§  10,  13,  63;  Snow,  p.  61;  566)  was   an     amendment  to  the 

Kliiber,  §§  79-82  ;  Walker,  Manual,  naturalization  laws  and  forbade  the 

§19;    Bluntschli,    §§    381-398;    II  naturalization  of  alien  enemies  and 

Dig.  Int.  Law,  §  206.  extended  the  period  of   residence 

'The   Federal  Constitution  and  prior  to  naturalization  to  fourteen 

the  laws  made  in  pursuance  there-  years.     The   second   (Act  of  June 

of  confer  power  upon  the  United  25,  1798,  I    Stat,  at  Large,   p.    571) 

States   to   restrict    individual    lib-  authorized    the    President,    at    his 

erty  only  in  the  case  of  a  person  discretion,  to  order  out  of  the  coun- 

charged    with   an    ollfence    against  try   all    such    aliens   as    he    might 

the   United  States,  or  arrested  in  judge  dangerous  to  the  peace  and 

pursuance  of  a  request  for  extra-  safety  of  the  United  States.     The 

dition  from  a  foreign  power,  made  third  (Act  of  July  6,  i798>  I  Stat. 

in  accordance  with  treaty  stipula-  at  Large,  p.  577)   declared  that,  in 

tions.    During  the  controversy  with  case   of  war  or  invasion,  all  resi- 

France    in     1798,    however,    three  dent  aliens,  being    citizens  of  the 

enactments  were   passed    by  Con-  hostile  nation,  might,  upon  a  proc- 

gress  authorizing  the  expulsion  of  lamation  issued  at   the  discretion 

aliens    from    the   territory   of    the  of  the   President,  be  apprehended 

United  States.      The  first  (Act  of  and  secured  or  removed.     None  of 

June  18,  1798,  I   Stat,  at  Large,  p.  these  statutes  was  ever  called  into 


I20  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Case  of  Shipwrecked  Sailors.  In  case  of  shipwreck,  or  where 
a  pubh'c  or  private  vessel  is  forced  by  stress  of  weather  to  take 
refuge  in  the  territorial  waters  of  a  foreign  state,  humanity 
dictates  that  her  passengers  and  crew  shall  be  hospitably  re- 
ceived and  cared  for  until  their  own  state,  or  its  duly  author- 
ized consular  representatives,  can  make  adequate  arrangements 
for  their  care  and  maintenance.  In  other  respects  such  an 
entry  into  the  ports  of  a  foreign  state  is  controlled  by  the  same 
rules  as  are  applied  to  merchant  ships,  or  to  public  armed  ves- 
sels, as  the  case  may  be.' 

In  the  cases  of  the  Creole  and  the  Maria  Luz,  presently  to 
be  explained,  both  of  which  were  compelled  to  seek  refuge  in 
foreign  ports,  in  consequence  of  a  mutiny  of  slaves  or  coolies 
which  constituted  their  cargoes,  the  contention  was  made  that, 
where  a  ship  is  compelled  by  the  perils  of  the  sea,  or  by  mu- 
tiny on  board,  to  take  refuge  in  a  foreign  port,  it  shall  be  al- 
lowed to  depart  in  the  same  condition  in  which  it  entered,  and 
that  persons  brought  in  in  a  state  of  slavery,  or  involuntary 
servitude,  shall  continue  to  occupy  that  relation  during  the 
stay  of  the  vessel  in  port  and  on  its  departure.  This  claim 
has  not  received  such  general  sanction,  however,  as  to  entitle 
it  to  consideration  as  a  rule  of  international  law. 

Case  of  tJie  "'Creole''  This  case  arose  in  1841.  The  Creole 
was  a  coasting  vessel  flying  the  American  flag,  which  was  en- 


operation.— Hildreth,  History  of  respect  justifiable.  —  IV  Opinions 
the  United  States,  vol.  v.  p.  216;  Att.-Gen.  p.  98.  If  a  vessel  be  com- 
Cooley,  Const.  Law,  pp.  97,  98.  For  pelled,  by  an  overruling  neces- 
thecase  of  Kossuth,  the  Hungarian  sity,  to  take  refuge  in  the  ports  of 
refugee,  see  I  Dig.  Int.  Law,  §  48;  another  country,  she  is  not  subject 
see  also  the  chapter  entitled  "  Ex-  to  the  municipal  laws  of  that  coun- 
tradition,"  and  II  Dig.  Int.  Law  §  try,  so  far  as  concerns  any  penalty, 
272;  Vattel,  liv.  ii.  chap.  viii.  §  100.  prohibition,  tax,  or  incapacity,  that 
'  In  the  case  of  a  compulsory  en-  would  otherwise  be  incurred  :  Pro- 
try  into  a  foreign  port,  under  an  vided,  she  do  nothing  further  to 
overruling  necessity,  the  enforce-  violate  the  municipal  law  during 
ment  of  the  municipal  law  of  the  her  stay. — VII  Ibid.  p.  18;  Ibid.  p. 
nation  having  jurisdiction  of  that  122  ;  Vattel, liv.  ii. chap.  viii.  §  104;  II 
port,  to  the  subversion  of  the  au-  Halleck,  p.  182;  Hall,  §  63  ;  I  Fer- 
thorities  and  rights  guaranteed  by  guson,  §§  112-114;  Bluntschli,  §§ 
its    own    country,  is    not    in   any  394-398;  II  Ortolan,  chap.  viii. 


RIGHTS— COMITY— CEREMONIAL  121 

gaged  in  carrying  a  cargo  of  slaves  from  Hampton  Roads  to 
New  Orleans,  both  ports  being  within  the  territorial  juris- 
diction of  the  United  States.  While  in  the  prosecution  of 
this  voyage,  the  slaves  mutinied,  killed  one  of  the  owners  of 
the  cargo,  and  compelled  the  officers  of  the  ship  to  put  in  to 
Nassau,  a  port  of  the  Bahama  Islands.  There,  in  accordance 
with  the  practice  of  the  British  Government  in  that  regard, 
the  authorities  of  the  port  set  at  liberty  all  persons  on  board 
who  had  not  been  concerned  in  the  murder.  The  surrender 
of  the  slaves  was  demanded  by  the  United  States  on  the 
ground  that,  as  the  action  of  the  captain  had  been  constrained, 
the  entry  had  been  in  distress,  and  that  such  entrance  into  a 
foreign  port  did  not  suspend  the  operation  of  the  laws  of  the 
state  under  whose  flag  the  ship  sailed,  or  affect  in  any  way  the 
status  of  the  persons  on  board  in  respect  to  their  legal  relations 
to  each  other.  The  British  Government  sustained  the  action 
of  its  colonial  authorities  and  declined  to  surrender  the  slaves, 
and  the  claim  for  them  was  finally  merged  in  the  negotiations 
which  resulted  in  the  extradition  treaty  of  August  9,  1842.' 

Case  of  tJie  '''Maria  Liiz^  The  Maria  Ltis,  a  vessel  flying 
the  Peruvian  flag,  while  carrying  a  cargo  of  coolies  from  Macao 
to  Peru,  being  in  distress,  was  obliged  to  put  in  to  the  port  of 
Yokohama,  Japan.  A  question  having  arisen  as  to  the  charac- 
ter of  the  alleged  "  passengers,"  an  inquiry  was  instituted  by 
the  local  authorities,  to  which  nearly  all  of  the  coolies  consti- 
tuting the  cargo  of  the  vessel  were  summoned  as  witnesses. 
After  the  inquiry  had  terminated,  the  Peruvian  captain  re- 
quested the  return  of  the  coolies,  which  was  refused.  He  was 
informed,  however,  that  the  local  courts  were  open  to  him  for 
the  institution  of  a  suit  with  a  view  to  compel  specific  per- 
formance of  their  labor  contracts,  on  the  part  of  the  coolies,  if 
any  such  contracts  existed.  This  trial  was  had  and  the  decision 
was  adverse  to  the  captain  of  the  Maria  Lnz.    Peru  having  no 

'I    Dig.   Int.  Law,  §  38;  II  Von  Webster's  Works,  p.  303  ;  Woolsey, 

Hoist,    Constitutional    History    of  §  74;  I  Phillimore,  pp.  364-366,  372, 

tlie  United  States,  p.  479;  II  Ben-  444;   Snow,  Cases  in   Int.  Law,  p. 

ton's  Thirty  Years'  View,  p.  409;  136. 


122  THE   ELEMENTS   OF    INTERNATIONAL    LAW 

consular  or  diplomatic  representatives  in  Japan  at  the  time, 
the  captain  then  requested  the  good  offices  of  the  American 
consul,  to  assist  him  in  securing  possession  of  the  cooly  passen- 
gers ;  his  request  was  declined,  however,  on  the  ground  that  the 
trade  in  cooly  laborers  was  forbidden  by  the  laws  of  the  United 
States.  This  refusal  was  approved  by  the  American  Govern- 
ment. The  case  was  then  presented  to  the  government  of  Japan 
by  the  American  minister,  with  the  consent  of  his  govern- 
ment, and  was  finally  referred  to  the  Emperor  of  Russia  for 
arbitration,  in  pursuance  of  an  agreement  to  that  effect,  entered 
into  by  the  Japanese  and  Peruvian  governments.  A  decision 
was  rendered  by  the  Emperor  Alexander  II.  on  February  29, 
1875,  to  the  effect  that  the  Japanese  Government  had  acted 
in  good  faith  in  the  matter,  and  was  not  responsible  for  the 
consequences  attending  the  detention  of  the  ship  in  the  terri- 
torial waters  of  Japan.' 

(c.)  The  Duty  of  Comity.  "  There  is  a  set  of  courteous  and 
convenient  observances,  usually  followed  in  the  conduct  of 
states  towards  each  other,  too  definite,  and  often  too  minute 
and  conventional,  to  make  it  proper  to  call  them  moral  prin- 
ciples. The  violation  or  neglect  of  these  is  not  considered 
sufficient  in  itself  to  justify  war,  though  one  state  is,  by  such 
violation  or  neglect,  often  placed  in  an  attitude  of  avowed  ill- 
will  and  suspicion  towards  another  state.  These  observations 
of  courtesy  and  convenience  are  said  to  depend  on  what  ju- 
rists and  statesmen  style  the  comity  of  nations!'''  The  practice 
of  extradition,  the  recognition  of  the  principles  of  private  in- 
ternational law,  the  privileges  of  exterritoriality  extended  to 
foreign  sovereigns  and  ambassadors,  to  armies  in  transit,  and 
to  public  armed  vessels,  are  all  based  upon  the  comity  of 
nations. 

{d!)  The  Duty  of  Intercourse.  In  the  discussion  of  this 
duty  it  is  necessary  to  regard  it  from   two  points   of   view, 

'  U.  S.  Foreign    Relations,  1873,  roy,  §  132;    Hall,  §  13;    I  Twiss,  §§ 

pp.  524-630;  Ibid.  1875,  p.  1066.  160-170;  I   Phillimore,  §§  16,  141- 

''  Creasy,  p.  36  ;   I  Halleck,  pp.  47,  143  ;  Walker,  Science  of  Int.  Law, 

156;  Woolsey,  §§  24,  73,  81 ;  Pome-  pp.  1 18-122. 


RIGHTS— COMITY— CEREMONIAL  1 23 

and  to  consider,  ist.  The  duty  of  a  state  to  enter  into  rela- 
tions of  intercourse  with  other  states;  to  send  and  receive  am- 
bassadors, to  permit  consuls  to  reside  and  to  perform  their 
duties  in  its  commercial  cities,  to  negotiate  treaties,  and  to 
permit  aliens  to  travel  or  reside  in  its  territory.  2d.  The  duty 
of  commercial  intercourse,  which  consists  in  permitting  for- 
eigners to  engage  in  commerce  with  its  subjects,  and  to  ex- 
change its  products  for  those  of  other  nations. 

In  the  former  case  a  nation,  by  establishing  a  rule  of  strict 
non-intercourse,  shuts  itself  out  from  being  a  party  to  inter- 
national law.  It  declines  to  be  bound  by  its  sanctions,  and  it 
cannot  of  right  expect  other  states  to  observe  them  in  such 
casual  and  irregular  intercourse  as  they  may  have  with  it. 
Aliens  who  enter  its  territory  do  so  at  their  peril ;  and,  as  its 
own  citizens  in  foreign  parts  cannot  look  to  their  own  govern- 
ment for  protection,  many  of  their  wrongs  must  go  unre- 
dressed. It  is  not  necessary  to  discuss  the  subject  further,  for 
the  reason  that  no  state  now  assumes,  or  has  ever  assumed, 
such  an  attitude  of  complete  isolation.  It  is  only  necessary 
to  observe,  in  this  connection,  that,  in  proportion  as  a  nation 
withdraws  itself  from  intercourse  with  other  states,  or  hampers 
its  international  relations  with  needless  and  burdensome  re- 
strictions, in  the  same  proportion  it  withdraws  itself  from  the 
benefits  and  privileges  of  international  law.  If  it  ceases  to 
sanction,  or  formally  withdraws,  privileges  which  have  been 
granted  to  other  states,  or  to  aliens  resident  within  its  terri- 
tory,  or  which  they  have  enjoyed  with  its  tacit  consent,  it  is 
guilty  of  a  violation  of  comity  which  will  gain  for  it  the  ill- 
will  of  nations,  and,  if  such  a  policy  be  persisted  in,  may,  in  the 
end,  result  in  measures  of  retaliation. 

In  respect  to  the  duty  of  commercial  intercourse,  it  has  been 
contended  by  some  writers  that  the  right  to  such  intercourse 
is  a  perfect  right,  and  that  a  refusal  to  enter  into  commercial 
relations  is  a  just  cause  for  war.  Others  claim  that  such  in- 
tercourse is  a  perfect  right  only  when  an  article  of  commerce 
is  produced  by  one  state  which  is  absolutely  necessary  to  the 
existence  of  another.     Neither   of   these  views  is   fairly  de- 


124  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

ducible  from  the  fundamental  principles  of  international  law. 
In  the  first  place,  while  many  articles  of  trade  are  highly  de- 
sirable, none  have  thus  far  been  shown  to  be  so  absolutely 
necessary  and  indispensable  as  to  justify  a  resort  to  forcible 
methods  to  obtain  them.  Such  a  view  is  not  to  be  inferred 
from  the  theory  of  state  sovereignty  and  independence,  and  a 
refusal  to  enter  into  such  relations  would  certainly  not  justify 
acts  of  hostile  interference.  "Vattel  lays  down  the  general 
rule  that  every  nation,  in  virtue  of  its  natural  liberty,  has  a 
right  to  trade  with  those  which  shall  be  willing  to  correspond 
with  such  intentions,  and  to  molest  her  in  the  exercise  of  her 
right  is  doing  her  an  injury."  '  "  The  obligation  of  trading  with  a 
foreign  state  is  imperfect  in  itself,  and  gives  them  only  an  imper- 
fect right,  so  that,  in  cases  where  the  commerce  would  be  detri- 
mental, it  is  entirely  void."  ^  "  China  and  Japan  for  a  long 
time  declined  all  commercial  intercourse  with  other  nations, 
and  even  now  permit  only  a  very  restricted  trade,  in  particular 
articles  and  at  particular  places.  The  question  was  at  one 
time  discussed  whether  these  people  could  not  be  compelled 
to  open  their  ports  to  foreigners,  and  engage  in  trade  and  gen- 
eral intercourse  with  the  rest  of  the  world.  But,  as  a  question 
of  international  jurisprudence,  it  scarcely  merits  consideration. 
No  doubt  on  this  point  could  arise  in  the  mind  of  any  person 
except  those  who  contend  that  the  rules  of  international  law 
adopted  by  Christian  nations  are  wholly  inapplicable  to  the 
countries  of  Asia.  But  this  opinion,  although  at  one  time 
supported  by  writers  of  unquestionable  ability,  is  now  almost 
universally  rejected  by  publicists."  ^ 

The  Duty  of  Mutual  Respect — Military  and  Mari- 
time Ceremonial 

Nature  and  Origin  of  the  Practice.     An  important  class 
of  international  usages,  largely  based  upon  the  principle  of  the 

'  Vattel,  liv.  ii.  chap.  ii.  §  24.  ^  I  Halleck,  p.  405  ;  Heffter,  §§  33, 

2 1  Halleck,  p.  404  ;  Vattel,  liv\  ii.  193;   Kliiber,  §§  69-71;    I  Lorimer, 

chap.  ii.  §  25  ;  Woolsey,  §§  25, 63,  64 ;  pp.  230-235. 

I  De  Martens,  §  139. 


RIGHTS— COMITY— CEREMONIAL  1 25 

equality  of  sovereign  states,  properly  falls  under  the  head  of 
imperfect  rights,  or  duties,  as  their  observance  is  now  generally 
held  to  rest  upon  the  comity  of  nations.  They  are  not  in 
themselves  matters  of  paramount  importance,  or  even,  in  most 
cases,  of  serious  concern;  but  their  due  observance  facilitates 
the  amicable  intercourse  of  nations,  and  their  neglect  frequent- 
ly leads  to  international  differences,  discussions,  and  enmities, 
which  have  sometimes  terminated  in  long  and  bloody  wars,' 

A  state,  in  its  capacity  as  a  body  corporate,  has  not  only  a 
right  of  reputation,  but  is  entitled  to  certain  external  and  vis- 
ible tokens  of  respect  in  recognition  of  its  dignity  and  im- 
portance as  a  member  of  the  great  commonwealth  of  nations. 
This  consideration  is  also  extended  to  its  flag,  to  its  sovereign, 
or  chief  executive,  and  to  those  persons  who  represent  the  state 
in  an  official  capacity.^  Within  its  territorial  limits  the  honors 
to  be  paid  to  its  officers  are  determined  largely  by  custom  and 
tradition  ;  to  a  certain  extent,  also,  they  are  recognized  and 
sanctioned  in  its  municipal  laws.  Without  its  territorial  juris- 
diction the  question  is  regulated  by  the  usage  of  nations,  and 
certain  honors  which  have  been  received  and  paid  during  long 
periods  of  time  are,  by  such  long-continued  usage,  recognized 
as  obligatory  at  international  law. 

The  practice  originated  in  the  honors  shown  to  sovereigns 
in  early  times,  when  they  represented,  to  a  greater  degree 
than  is  now  the  case,  the  majesty  and  sovereignty  of  the  states 
which  they  ruled  by  hereditary  right,  and  whose  territory  they 
regarded  as  their  own.  This  early  view  culminated  towards 
the  close  of  the  seventeenth  century,  when  Louis  XIV.  was 
at  the  height  of  his  power,  and  before  the  principle  of  popular 
sovereignty  had  begun  to  make  itself  felt  as  a  political  force 
in  state  affairs.  During  this  period  there  was  no  surer  cause 
for  war  than  a  failure  in  respect  towards  a  great  sovereign  or  his 


'I  Halleck,   p.    107;    I  Ortolan,      Fodere,  §§  546-594;  Vattel,  liv.  ii. 
chap.    XV.;    I  Tvviss,    §§    193-198;      chap.  iii.  §  48. 
Heffter,  §  197  ;  Kliiber,  §§  89-122;         ^  Vattel,  liv.  i.  chap.  xiv.  §§  186- 
Calvo,    §§    296-345;    II    Pradier-      191;    II   Pradier- Fodere,  §§  451- 

455;  Wolsey,  §§  18,  82. 


126  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

representative,  and  not  a  few  of  the  many  wars  waged  were 
caused  or  prolonged  by  no  better  reasons  than  this.  During 
the  eighteenth  century  the  practice  began  to  decHne  in  im- 
portance, and  merely  regal  honors  began  to  be  less  strongly 
insisted  upon,  and  the  power  and  dignity  of  the  state  itself, 
rather  than  that  of  its  rider,  began  to  be  regarded  as  the  real 
object  of  honor  and  respect.  Within  the  present  century  the 
general  tendency  of  treaties  and  usage  has  been  to  diminish 
the  number  and  variety  of  these  ceremonial  observances,  and 
to  simplify  and  regulate  those  which  have  been  retained,  or 
whose  continued  observance  is  deemed  necessary  or  de- 
sirable.' 

Present  Practice.  The  observance  of  these  forms  is  now 
held  to  be  obligatory  in  the  following  cases: 

(i.)  In  the  forms  of  mutual  courtesy.  This  is  shown  chiefly 
in  the  recognition  of  an  existing  form  of  government,  includ- 
ing its  sovereign,  or  executive,  and  other  administrative  offi- 
cials, whose  functions  are  provided  for  by  its  constitution  and 
laws.  In  former  times  none  but  monarchies  were  recognized 
as  having  the  first  rank,  and  an  order  of  precedence  was  estab- 
lished among  them,  based  largely  upon  the  rank  and  titles  of 
their  respective  sovereigns.  Republics  were,  to  some  extent, 
disfavored,  and  in  matters  of  honor  and  precedence  were  rele- 
gated to  a  place  of  secondary  or  minor  importance.  This  is 
no  longer  the  case,  however,  and  all  sovereign  states  are  now 
placed  upon  a  footing  of  perfect  equality  in  all  matters  of  cer- 
emonial.'' 

(2.)  In  naval  and  military  ceremonials  observed  on  the  high 
seas,  or  in  the  territorial  waters  of  a  state,  between  ships  or 
fleets,  between  ships  in  port,  and  between  ships  and  forts  or 
fortified  places.' 

(3.)  In  similar  observances,  on  land,  between  armies,  forts, 

'  Halleck,  pp.   107-113;   I   Orto-  Phillimore,  §  147;  Hall,  §  13,  pp.  16, 
Ian,  liv.  ii.  chap.  xv.  p.   335  ;  Klu-  62;  I  De  Martens.  §§  126-138. 
ber,  §§  115-117;  ITvviss,  §§193-195;         =  I  Ortolan,  pp.  316-332  ;   I  Hal- 
Lawrence,  Int.  Law,  §§  137-140.  leek,  pp.  107-123;  Snow,  pp.  70,  71 ; 

-  I  Halleck,  chap.  v.  §§  1-14;   I  II  Pradier-Fodere,  §§  549-594- 


RIGHTS— COMITY— CEREMONIAL  12/ 

military  and  naval  officers,  and  in  certain  military  honors 
shown  sovereigns,  or  to  the  higher  grades  of  civil  officers  in 
the  several  departments  of  government  of  the  state/ 

(4.)  In  the  formality  and  ceremonial  observed  in  diplomatic 
intercourse  and  interstate  correspondence.^ 

A  state,  as  an  incident  of  its  sovereignty,  may  regulate  the 
honors  to  be  paid,  within  its  jurisdiction,  to  its  own  flag  and 
officials,  and  to  those  of  foreign  states.  It  may  also  prescribe 
the  conduct  of  its  representatives  abroad,  subject  to  the  limi- 
tation that  its  instructions  cannot  be  carried  into  effect  if  they 
are  opposed  to,  or  inconsistent  with,  the  usages  or  policy  of 
the  state  within  whose  jurisdiction  it  is  attempted  to  exercise 
them.  In  accordance  with  this  principle  every  state  prescribes, 
in  its  laws  or  regulations,  the  forms  of  respect  to  be  shown  to 
its  flag,  or  to  the  person  in  whom  its  sovereignty  is  vested,  and 
no  greater  honors  may  be  shown  to  a  foreign  ruler  than  are 
thus  prescribed  to  be  paid  to  its  own  sovereign  or  chief  ex- 
ecutive.^ 

At  the  present  time  all  states  are  regarded  as  being  equal  in 
right  and  dignity,  and  the  honors  now  observed  are  regarded 
as  due : 

(i.)  To  the  state  itself,  in  its  sovereign  capacity.  These  con- 
sist in  certain  honors  paid  to  its  flag,  to  its  sovereign  or  chief 
executive,  as  the  representative  of  its  sovereignty,  to  its  ships- 
of-war  in  foreign  ports  or  on  the  high  seas,  and  to  organized 
detachments  of  its  land-forces  when  in  foreign  territory. 

(2.)  To  those  persons  who  represent  it  abroad  in  an  official 
capacity.  Under  this  head  fall  certain  honors  and  marks  of 
respect  shown  to  its  ambassadors  and  consuls  in  their  different 
grades,  and  to  persons  in  its  civil  or  military  service  whose 
duties  are  performed  in  foreign  territory,  or  who  appear  in 
such  territory  in  an  official  character.* 

1  I  Halleck,  pp.  107-123.  335;  I  Halleck,  p.  107;  I  Twiss,  § 

*  Ibid.  p.  106;  II  De  Martens,  §§      193. 
206-213;  II  Pradier-Fodere,  §§  547,         '« I   Ortolan,  liv.   ii.  chap.  xv.  p. 
548-  335;  Klliber,  §  120;  I  Halleck,  pp. 

^1   Ortolan,  liv.  ii.   chap.  xv.  p.      107-114;  I  De  Martens,  §§  125-138; 

Heflfter,  §§  194-218. 


128  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

Maritime  Ceremonial.  The  subject  of  maritime  cere- 
monial is  regulated  by  usage,  and,  to  a  perceptibly  increasing 
extent,  at  the  present  time,  by  treaty  and  agreement  of  the 
maritime  powers.  Ships-of-war  visiting  foreign  ports  have  a 
peculiarly  representative  character.  They  are  required  to  pay 
certain  honors  to  the  territorial  sovereign  and  his  representa- 
tives, and  may  expect,  in  return,  that  equal  respect  and  similar 
honors  shall  be  shown  to  the  flag  under  which  they  sail,  and  to 
the  state  whose  commission  they  bear. 

The  forms  of  maritime  ceremonial  consist  in  the  firing  of 
salutes,  in  the  exchange  of  visits  and  other  courtesies,  and  in 
manning  the  yards,  dressing  the  ship,  and  hoisting  the  flag  of 
the  state  or  person  saluted.  It  was  formerly  customary,  in 
firing  salutes  in  port,  to  furl  the  sails;  and  a  similar  practice 
prevailed  of  hoisting  a  particular  sail  in  saluting  or  returning 
the  salutes  of  war-ships  or  fleets  at  sea.  The  national  flag  of 
a  public  armed  vessel,  however,  should  never  be  lowered  as  a 
token  of  respect  to  any  foreign  state  or  individual.  As  an  ex- 
pression of  grief  it  may  be  lowered  to  half-mast ;  it  may  be 
dipped  in  returning  a  similar  salute  rendered  by  a  foreign  ves- 
sel, but  in  every  other  case  it  should  be  carried  in  its  proper 
situation  at  the  mast-head  during  those  hours  of  the  day  in 
which  its  display  is  required  by  regulations.* 

Ceremonial  on  the  High  Seas.  When  two  fleets  or  ships- 
of-war  meet  upon  the  high  seas,  one  of  which  carries  a  com- 
modore or  flag-officer,  courtesy  requires  that  the  command- 
ing officer  junior  in  rank  shall  salute  first.  The  same  rule  holds 
with  respect  to  the  flag-ships  of  squadrons ;  but  a  single  ship, 
no  matter  what   its  rank,  meeting  a  squadron,  salutes  first." 

'  I  Ortolan,  liv.   ii.  chap.  xv.  pp.  the  same  manner  as  when  meeting 

335.336;  I  Halleck,  p.  114;  Queen's  similar  ships  of  the  United  States, 

Regulations    (6th     Augustr  1861),  as  provided  for  in  Articles  87  and 

chap.  iii.  §  7;  Heffter,  §  197.  88,  except  that  the  salute  will  be 

^  I  Halleck,  p.  114.    When  a  ship  returned  gun  for  gun.     In  port,  if 

of  the  navy  falls  in  at  sea  with  a  several  flag-officers  are  to   be    sa- 

friendly  foreign  ship-of-war  flying  luted,  the  salutes  shall  be  fired  m 

the  flag  or  pennant  of  a  flag-officer  the  order  of  their  rank  ;  if  of  the 

or  commodore,  she  shall  exchange  same  grade,  priority  shall  be  given, 

salutes  with  such  ship-of-war  in  first,  to  the  nationality  of  the  port, 


RIGHTS— COMITY— CEREMONIAL  1 29 

These  salutes  are  returned  gun  for  gun.  Vessels  carrying 
sovereigns,  members  of  royal  families,  rulers  of  states,  and 
ambassadors  are  to  be  saluted  first.  The  question  of  returning 
salutes  of  this  class  is  now  regulated  by  an  international  agree- 
ment which  will  presently  be  explained.' 

Merchant  vessels  of  the  same  or  different  nations,  meeting 
or  passing  upon  the  high  seas,  usually  hoist  their  national 
colors,  but  otherwise  do  not,  as  a  general  rule,  salute  eacli 
other.  It  is  customary,  however,  for  them  to  ascertain,  by  hail- 
ing or  the  use  of  signals,  the  name,  origin,  destination,  and 
cargo  of  passing  vessels.  This  information  is  noted  in  the 
ship's  log,  and,  as  a  matter  of  commercial  news,  is  sometimes 
reported  to  the  port  of  origin  of  the  vessel  hailed. 

Ceremonial  in  Foreign  Ports;  Salutes.  When  a  public 
armed  vessel  enters  a  port  of  a  foreign  nation,  where  there  is 
a  fort  or  battery  or  where  a  ship-of-vvar  of  that  nation  is  lying, 
she  is  required  to  salute  the  flag  of  the  state  within  whose 
territorial  jurisdiction  she  has  come.  This  salute  consists,  usu- 
ally, of  twenty-one  guns,  and  will  not  be  dispensed  with  unless 
the  commanding  officer  of  the  arriving  vessel  is  satisfied  that 
the  salute  will  not  be  returned.  In  case  two  or  more  ships 
enter  in  company,  only  the  one  commanded  by  the  senior  offi- 
cer is  expected  to  salute.  This  is  the  first  salute  fired  after 
entering  the  port,  and  the  ensign  of  the  nation  saluted  is  re- 
quired to  be  displayed  from  the  main  while  it  is  being  fired  ;^ 
it  is  a  compliment  to  the  flag,  and  is  therefore  regarded  as 
international  rather  than  personal. 

International  Agreement  as  to  Salutes.  A  proposition 
originating  with  the  British  Government  has  received  such 
general  approval  and  sanction  from  other  maritime  powers  as 
to  entitle  it  to  acceptance  as  an  international  usage.     In  ac- 

and,  second,  to  the  length  of  ser-  visits  have  been  made. — Par.   114 

vice  of  the  flag-officers  in  their  re-  U.  S.  Navy  Regulations  of  1896. 
spective  commands.     As  between         '  I  Halleck,  p.  114. 
flag-officers  of  the  same  grade,  the         'See  paragraph  113  U.  S.  Navy 

last   comer  will    be   saluted   first.  Regulations    of   1896;    see  also   I 

These  salutes  shall  be  fired  as  soon  Ortolan,  liv.  ii.  chap.  xv.  pp.  336- 

as  possible  after  the  usual  boarding  338;  I  Halleck,  p.  116. 

9 


130  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

cordance  with  its  terms  the  following  classification  is  made  of 
salutes:' 

I.  Salutes  to  be  returned  gun  for  gun: 

1.  To  the  national  flag  upon  arrival  in  a  foreign  port. 

II.  To  foreign  flag-officers  and  commodores  when  met  at 
sea  or  in  port.* 

2.  Salutes  not  to  be  returned: 

I.  To  a  president  of  a  republic,  royal  personages,  or  mem- 
bers of  royal  families,  whetHer  on  arrival  at  or  departure  from 
a  port,  or  upon  visiting  ships-of-war. 

II.  To  diplomatic,  naval,  military,  or  consular  authorities,  or 
to  governors,  or  officers  administering  a  government,  whether 
on  arrival  at  or  departure  from  a  port,  or  when  visiting  ships- 
of-war. 

III.  To  foreigners  of  high  distinction  on  visiting  ships-of-war. 

IV.  Upon  occasions  of  national  festivities  or  anniversaries. 
Visits  of  Ceremony.     The  following  rules,  in  which  the 

maritime  powers  generally  have  concurred,  are  observed  by 
all  naval  officers  in  the  interchange  of  visits  with  naval  and 
military  authorities  on  shore  and  with  the  officers  of  friendly 
foreign  ships-of-war  in  all  ports  of  the  civilized  world : 

1.  The  senior  officer  in  port,  whatever  may  be  his  rank,  will, 
upon  the  arrival  of  a  foreign  ship-of-war,  send  an  officer  on 
board  tfie  arriving  vessel  to  offer  the  customary  courtesies.  In 
case  two  or  more  ships  of  the  same  nation  arrive  in  company, 
the  visit  is  made  to  the  senior  ship  only ;  this  is  called  the 
"  boarding  visit." 

2.  When  such  a  visit  is  made  to  a  public  armed  vessel,  an 
officer  shall  be  sent  to  return  it  at  once. 

'Adopted  by  the  United  States  ality  of  the  port,  and,  second,  to  the 
August  i8,  1875;  see  U.  S.  Foreign  length  of  service  of  the  several  flag- 
Relations,  1875,  part  ii.  pp.  656,  657  ;  officers  in  their  respective  corn- 
see  also  paragraphs  133  and  164  mands.  As  between  flag-officers 
U.  S.  Navy  Regulations  of  1896.  of  the  same  grade,  the  last  comer 

''In    port,  if  sev'eral  flag-oflficers  salutes  first.  These  salutes  are  fired 

are  to  be  saluted,  the  salutes  are  as  soon  as  possible  after  the  cus- 

fired  in  the  order  of  their  rank;  if  tomary  boarding  visits  have  been 

of  the   same  grade,  priority  in   sa-  made. —  See  paragraph   114   U.    S. 

luting  is  given  :  first,  to  the  nation-  Navy  Regulations  of  1896. 


RIGHTS— COMITY— CEREMONIAL  I31 

3.  Within  twenty-four  hours  after  his  arrival,  the  flag-officer 
or  other  officer  in  chief  command  of  the  arriving  ship  or  ships 
will  visit  the  flag  or  other  officer  in  chief  command  of  the  for- 
eign ship  or  ships  in  port,  if  the  latter  be  his  equal  or  superior 
in  grade.  Such  a  visit  made  to  a  public  armed  vessel  is  re- 
quired to  be  returned  within  twenty-four  hours. 

4.  In  the  cases  of  officers  of  different  grades,  the  junior  is 
expected  to  pay  the  first  visit,  the  same  limits  of  time  being 
observed  as  to  the  visit  and  its  return.  Where  it  is  impossible 
to  determine  the  relative  or  assimilated  rank,  as  between  the 
authorities  on  land  and  the  officers  afloat,  the  first  visit  is  usu- 
ally paid  by  the  officials  on  shore.' 

5.  Flag-officers  return  visits  of  officers  of  the  grade  of  cap- 
tain and  those  of  superior  grades.  It  is  customary  for  chiefs 
of  staff  to  return  the  calls  of  commanders  or  other  junior  com- 
manding officers. 

6.  Captains  and  commanding  officers  of  junior  grades  will 
return  all  visits  made  to  them  by  commanding  officers,  what- 
ever their  grade. 

7.  In  the  case  of  two  or  more  ships  arriving  in  port,  or  lying 
in  port  when  another  ship  arrives,  after  the  interchange  of 
visits  between  the  senior  officers  shall  have  taken  place,  the 
captains  or  other  officers  in  command  of  the  arriving  ships-of- 
war  call  upon  the  officers  in  command  of  the  ships-of-war  in 
port,  by  whom  the  visits  are  returned.' 

'  U.  S.  Navy  Regulations  (1896),  tain,  are  usual  or  desirable,  and  will 

par.  164 ;  I  Ortolan,  liv.  ii.  chap.  xv.  probably  be  returned.    The  officers 

p.  344;  I  Halleck,  chap.  v.  §  23 ;  I  to   make   the  visits  shall  be    des- 

Twiss,  §194;  Heffter,  §197.  ignated    by    the    captain."  —  Par. 

'See  pars.   164   and   165  of  the  1^65  U.  S.  Navy  Regulations,  1896. 

United    States    Navy   Regulations  "  Visits  of  ceremony  between  offi- 

of  1896,  which  contain  the  follow-  cers  of  ships  of  the  navy  and  those 

ing  provisions:  "Wardroom  officers  of  foreign  naval  and  military  sta- 

of  a  ship  of  the  navy  arriving  in  tions  and  between  officers  of  naval 

port,  shall,  after  the  interchange  of  stations  and  those  of  foreign  ships- 

the  usual  visits  by  their  own  and  of-war,  shall  be  governed   by  the 

othercaptains, call  upon  command-  rules   laid  down  in  Arts.  164  and 

ing  and  wardroom  officers  of  other  165,  so  far  as  officers  of  the  United 

ships-of-war  in   port,  when  such  States  Navy  are  concerned." — Par. 

visits,  in  the  opinion  of  their  cap-  166,  Ibid. 


132 


THE   ELEMENTS   OF   INTERNATIONAL    LAW 


Ceremonial  on  Land.  A  similar  ceremonial  is  observed  on 
land,  between  officers  in  chief  command  of  armies,  forts,  and 
military  posts,  and  military  or  naval  officers  representing  dif- 
ferent states,  who  come  into  official  or  personal  contact  with 
them  in  the  performance  of  their  official  duties.  Suitable 
military  and  naval  honors  are  paid  to  foreign  sovereigns  and 
ambassadors,  and  to  the  higher  grades  of  officials  of  the  diplo- 
matic or  military  service  of  a  foreign  state.' 


'  Upon  arrival  in  a  foreign  port 
where  there  are  diplomatic  or  con- 
sular officers  of  the  United  States, 
the  following  rules  in  regard  to 
visits  of  ceremony  shall  be  observed 
by  officers  of  the  navy:  i.  A  flag- 
officer  or  commodore  shall  pay  the 
first  visit  to  a  diplomatic  officer  of 
or  above  the  rank  of  charge  d'af- 
faires. He  will  receive  the  first  visit 
from  consular  officers.  2.  A  com- 
manding officer  shall  pay  the  first 
visit  to  a  diplomatic  officer  of  or 
above  the  rank  of  charge  d'affaires, 
and  to  a  consul-general.  He  will 
receive  the  first  visit  from  other 
consular  officers.  3.  Diplomatic 
and  consular  officers  in  charge  of 
legations  or  consulates  shall  be 
notified  of  the  arrival  of  the  ship 
in  port.  4.  The  senior  officer  pres- 
ent, when  notified,  shall,  if  neces- 
sary, arrange  to  furnish  a  suitable 
boat  to  enable  a  diplomatic  or  con- 
sular officer  to  pay  official  visits 
afloat.  A  commanding  officer  shall, 
when  notifying  these  officers  of  his 
arrival,  offer  them  a  passage  to  the 
ship  at  such  time  as  they  may  se- 
lect.— Par.  169  U.  S.  Navy  Regu- 
lations of  1896.  Flag  and  com- 
manding officers  of  the  navy  shall, 
in  foreign  ports,  pay  such  visits  to 
foreign  civil,  military,  naval,  diplo- 
matic, consular,  and  other  officials 
as  custom  and  courtesy  may  de- 
mand.—  Par.  170,  Ibid.  Flag-offi- 
cers and  commodores  may  expect 
a  return  visit  in  person  from  for- 
eign governors  and  other  high  civil, 


military,  and  diplomatic  officials. 
Other  commanding  officers  may 
expect  such  return  visits  to  be 
made  by  an  aid-de-camp  or  other 
suitable  officer  designated  for  that 
purpose. — Par.  171,  Ibid.  The  U.  S. 
Army  Regulations  of  1895  con- 
tain the  following  requirements  in 
respect  to  visits  of  ceremony  :  The 
interchange  of  official  compliments 
and  visits  between  foreign  military 
and  naval  officers  and  the  authori- 
ties of  a  military  post  is  interna- 
tional in  character  and  opens  the 
way  to  official  and  social  courtesies 
among  the  officers.  In  cases  of 
vessels  of  war,  foreign  or  otherwise, 
recently  arrived,  it  is  the  duty  of 
the  post  commander  to  send  a  suit- 
able officer  to  offer  civilities  and 
assistance.  It  is  expected  that  this 
civility  will  be  returned,  and  that 
within  twenty -four  hours  there- 
after, weather  permitting,  the  offi- 
cer in  chief  command  of  the  ship 
or  ships  will  visit  the  officer  in  com- 
mand of  the  post  or  station,  should 
the  latter  be  his  equal  or  superior 
in  grade.  This  visit  will  be  re- 
turned within  twenty -four  hours. 
Should  the  naval  officer  in  com- 
mand be  superior  in  grade  to  the 
officer  commanding  the  post  or 
station  the  first  visit  will  be  paid 
by  the  latter. — Par.  421  Army  Reg- 
ulations, 1895.  When  a  military 
commander  officially  visits  a  vessel 
of  war,  he  will  give  notice  in  ad- 
vance of  his  intention  to  do  so. 
He  is  received  ^t  the  gangway  by 


RIGHTS— COMITV— CEREMONIAL 


133 


Observance  of  National  Anniversaries. — Vessels  of  war  in 
foreign  ports  celebrate  their  own  fetes  according  to  the  regula- 
tion of  their  own  government.  Courtesy  also  requires  them  to 
take  part  in  the  n^ixomX  fetes  of  the  place,  by  joining  in  public 
demonstrations  of  joy  or  grief.  The  same  mark  of  respect  is 
shown  to  vessels  of  a  third  power  which  celebrate  fetes  in  for- 
eign ports.  But  if  such  celebrations  are  of  a  character  to  offend 
or  wound  the  feelings  of  their  own  countrymen,  or  the  nation 
in  whose  waters  they  are  anchored — as  public  rejoicing  for  a 
victory  gained — ships-of-war  will  remain  as  silent  spectators, 
or  leave  the  ports,  according  to  the  circumstances  of  the  case. 
In  public  ceremonies  upon  land  the  commandants  of  vessels  or 
fleets  usually  land  with  the  officers  of  their  staff,  and  receive  a 
place  of  honor  according  to  the  hierarchy  of  rank,  precedence 
being  determined  by  grade,  and,  if  equal,  by  date  of  arrival.  In 
case  of  disputes  as  to  rank,  it  is  proper  for  the  contestants  to 
withdraw,  and  become  mere  spectators  of  the  ceremonies.' 


the  commander  of  the  vessel  and 
is  accompanied  there  by  the  same 
officer  when  leaving.  The  officer 
who  is  sent  with  the  customary 
offer  of  civilities  is  met  at  the  gang- 
way of  a  vessel  of  war  by  the  officer 
of  the  deck,  and  is  presented  by  the 
latter  to  the  commander  of  the 
vessel. — Par.  422,  Ibid.  A  vessel  of 
war  is  approached  and  boarded,  by 
commissioned  officers,  by  the  star- 
board side  and  gangway.  In  enter- 
ing a  boat,  the  junior  goes  first  and 
other  officers  follow  in  order  of 
rank  ;  in  leaving  a  boat,  the  senior 
goes  first.  The  latter  acknowl- 
edges the  salutes  which  are  given 
at  the  gangway  of  a  naval  vessel. — 
Par.  423,  Ibid.  Naval  vessels  fire 
personal  salutes  to  officers  entitled 
to  them  when  the  boats  containing 
them  have  cleared  the  ship.  It  is 
an  acknowledgment  of  the  salute 
by  the  officer  saluted  for  his  boat 
to  lie  on  her  oars  from  the  first 
until  the  last  gun  and  for  him  to 
uncover ;  at  the  conclusion,  to  give 


way.  Personal  salutes  are  not  re- 
turned by  military  posts. — Par.  424, 
Ibid. 

'  I  Halleck,  p.  116.  In  case  of 
vessels  of  war  of  foreign  powers  at 
peace  with  the  United  States  lying 
in  our  ports  or  harbors  and  cele- 
brating their  national  festivities, 
the  commander  of  each  fort,  bat- 
tery, or  militar}^  post  may  partici- 
pate in  the  celebration  by  firing 
salutes,  parading  commands,  etc. 
In  such  a  case  the  flag  of  the  United 
States  will  be  hoisted  and  lowered 
simultaneously  with  that  of  the 
ship  on  board  of  which  the  cele- 
bration occurs.  —  Par.  425  U.  S. 
Army  Regulations  of  1895  ;  see,  for 
a  similar  requirement,  paragraphs 
175  and  176  U.  S.  Navy  Regula- 
tions of  1896.  General  Orders  No. 
57  of  the  War  Department,  dated 
March  28,  1899,  and  published  with 
the  concurrence  of  the  Secretary 
of  the  Navy,  contains  the  following 
requirements  in  respect  to  the  in- 
terchange of  visits  between  officers 


134 


THE   ELEMENTS    OF   INTERNATIONAL   LAW 


References.  For  a  discussion  of  the  fundamental,  or  perfect,  rights 
of  states,  the  student  is  referred  to  the  following  authorities:  Hall,  "  In- 
ternational Law,"  pp.  45-50;  Creasy,  "  First  Platform  of  International 
Law,"  chap.  viii. ;  G.  F.  De  Martens,  "  Precis  du  Droit  des  Gens,"  liv.  iii. 
chaps.  1-3;  liv.  iv.  chaps.  1-4;  I  Halleck,  chaps,  iv.-vii.;  Snow,  p.  21; 
Vattel,  prel.  chapter  and  chap.  iii.  §§  31-48;  Woolsey,  §§  36-52.  For 
the-rules  and  forms  of  international  ceremonial,  diplomatic,  naval,  and 
military,  see  I  Halleck,  chap.  v.  §§  15-29;  I  Ortolan,  "  Diplomatic  de  la 
Mer,"  chap.  xv. ;  I  G.  F.  De  Martens,  liv.  iv.  §§  126-138,  158-163;  II  Ibid. 
§§  175-184;  HefTter,  liv.  iii.  chaps,  i.  and  ii. ;  Vattel,  liv.  ii.  chap.  iii.  and  the 
naval  and  military  regulations  of  various  states.  The  subject  of  "  Imper- 
fect Rights"  is  treated  by  Creasy,  §§  15-23;  I  Phillimore,  pp.  181-183; 
I  Halleck,  chap.  xiii.§§  1-25;  I  G.  F.  De  Martens,  liv.  iv.  §§  1 25-1 51 ;  Vattel, 
book  ii.  chaps,  i.  and  ii.  Under  the  head  of  duties,  or  moral  claims,  this 
subject  is  quite  fully  treated  by  Dr.  Woolsey, "  International  Law,"  §§22-25. 

the  naval  commander-in-chief  shall 
make  the  first  visit  both  upon  the 
governor  and  the  army  officer  in 


of  the  navy  and  the  officers  having 
to  do  with  the  administration  of 
the  islands,  or  groups  of  islands, 
now  occupied  by  the  military  forces 
of  the  United  States:  "The  term 
governor-general  shall  be  taken  to 
mean  an  administrative  officer  un- 
der whom  officials  with  the  title  of 
governor  are  acting.  The  salute 
of  a  governor-general  shall  be  sev- 
enteen guns.  All  naval  officers  in 
command  shall  make  first  visits 
upon  the  governor -general  what- 
ever the  Tatter's  military  grade. 
Officers  of  the  army  holding  com- 
mands under  a  governor- general, 
or  acting  as  governors  of  provinces, 
departments,  or  cities,  shall  make 
the  first  visit  upon  a  naval  com- 
mander-in-chief, if  the  latter  is  of 
equal  or  superior  grade,  as  shall 
also  civilian  governors  of  provinces, 
departments,  or  cities.  If  not  a 
conmiancer-in-chief,  the  first  visit 
shall  be  made  by  the  senior  naval 
officer  upon  officers  of  the  army 
holding  command  under  a  govern- 
or-general or  acting  as  governors 
of  provinces,  departments,  or  cities, 
if  the  latter  are  equal  or  superior 
in  grade,  and  upon  civilian  govern- 
ors of  provinces,  departments,  or 
cities.  Should  the  governor-gen- 
eral be  a  civilian,  and  therefore  not 


chief  command  of  troops  in  the 
island  or  group  of  islands,  if  the 
latter  is  of  equal  or  superior  grade. 
Visits  should  be  exchanged  under 
the  above  rules  between  a  naval 
commander-in-chief  or  senior  naval 
officer:  (i)  With  the  governor;  (2) 
the  governor  of  a  province,  depart- 
ment, or  city  ;  (3)  the  army  officer 
in  chief  command  at  a  place  where 
there  is  a  civil  governor.  Should 
the  governor-general  or  any  other 
officer  administering  the  govern- 
ment of  an  island  find  that  from 
indisposition  or  pressure  of  impor- 
tant business  he  is  unable  to  pay  or 
return  these  visits  in  person,  he 
will  depute  his  aide-de-camp  or 
some  other  officer  to  do  so.  In  like 
manner,  should  a  naval  command- 
er-in-chief from  indisposition  or 
pressing  occupation  be  precluded 
from  paying  or  returning  these 
visits,  he  will  depute  an  officer  not 
below  the  rank  of  flag-lieutenant  to 
do  so.  In  each  case  the  officer  fail- 
ing to  pay  the  required  visit  in  per- 
son will  report  the  circumstances, 
and  assign  the  reasons  which  led 
to  the  omission,  10  the  department 
under  which  he  is  acting." — G,  O. 


holding  direct  military  command,^  57  ;  A.  G.  O.  li 


\ 


CHAPTER   IV 

NATIONAL   CHARACTER:    CITIZENSHIP,    NATURALIZATION, 
EXPATRIATION,    DOMICILE 

Citizens ;  Subjects.  Although  the  parties  to  international 
law  are  sovereign  states,  those  states,  as  we  have  seen,  are  com- 
posed of  individual  units,  or  members,  called,  variously,  citi- 
zens or  subjects.  A  citizen  or  subject  may  therefore  be  defined 
as  an  individual  member  of  the  body  politic,  owing  it  the  duty 
of  allegiance  and  support,  and  entitled,  in  return,  to  its  pro- 
tection as  to  his  person  and  property.'  The  terms  citizen  and 
subject,  as  used  in  international  law,  have  precisely  the  same 
meaning  ;  they  apply  to  all  the  inhabitants  of  a  state,  of  both 
sexes,  and  of  all  ages  and  conditions,  who  were  born  in  its  al- 
legiance or  have  acquired  the  quality  of  citizenship  by  natu- 


'  The  very  idea  of  a  political  com- 
munity, such  as  a  nation  is,  implies 
an  association  of  persons  for  the 
promotion  of  their  general  welfare. 
Each  one  of  the  persons  associated 
becomes  a  member  of  the  nation 
formed  by  such  association.  He 
owes  it  allegiance  and  is  entitled  to 
its  protection.  Allegiance  and  pro- 
tection are,  in  this  connection,  re- 
ciprocal obligations.  The  one  is  a 
compensation  for  the  other;  alle- 
giance for  protection,  and  protec- 
tion for  allegiance.  For  conven- 
ience it  has  been  found  necessary 
to  give  a  name  to  this  membership. 
The  object  is  to  designate  by  a  title 
the  person  and  the  relation  he  bears 
to  the  nation.  For  this  purpose  the 
vvords  '•  subject,"  "  inhabitant,"  and 
'  citizen"  have  been  used,  and  the 


choice  between  them  is  sometimes 
made  to  depend  upon  the  form  of 
government.  "  Citizen  "  is  now 
more  commonly  employed,  how- 
ever, and  as  it  has  been  considered 
better  suited  to  the  description  of 
one  living  under  a  republican  gov- 
ernment, it  was  adopted  by  nearly 
all  of  the  states  upon  their  separa- 
tion from  Great  Britain,  and  was 
afterwards  adopted  in  the  Articles 
of  Confederation  and  in  the  Con- 
stitution of  the  United  States. 
When  used  in  this  sense  it  is  un- 
derstood as  conveying  the  idea  of 
membership  of  a  nation  and  noth- 
ing more.  —  Minor  vs.  Happerset, 
21  Wallace,  162;  United  States  ■z^i'. 
Cruickshank,  92  United  States,  542 ; 
the  Pizarro,  2  Wheaton,  227. 


136  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

ralization.  The  term  **  citizen  "  is  applied  in  states  having  re- 
publican forms  of  government ;  the  term  "  subject  "  in  those 
having  monarchical  institutions.  The  civil  and  political  rights 
of  an  individual,  in  the  state  of  which  he  is  a  citizen,  are  de- 
termined by  its  constitution  and  laws  ;  without  that  state  his 
rights  are  determined,  as  will  presently  be  seen,  by  the  rules 
of  international  law. 

It  is  proper  to  say,  however,  in  this  connection,  that  it  is 
not  an  essential  condition  of  citizenship  that  an  individual 
subject  or  citizen  should  have  any  share  in  the  government  of 
a  state.  His  position  at  international  law  is  the  same  in  either 
case.  The  right  of  suffrage  is  strictly  municipal  in  character, 
and  is  a  privilege  granted,  or  withheld,  by  a  state  in  accord- 
ance with  its  constitution  and  laws.  In  some  states  it  does 
not  exist,  in  others  it  is  greatly  restricted,  in  none  does  it  ex- 
tend to  all  who  have  the  rights  and  privileges  of  citizenship.* 

Extra-Territorial  Privileges.  In  addition  to  the  rights 
and  privileges  which  they  enjoy  as  citizens  of  the  particular 
state  to  which  their  allegiance  is  due,  these  members  of  the 
body  politic  occupy  a  well-defined  status  which  is  recognized 
by  the  states  into  whose  territory  they  may  come  as  travellers 
or  sojourners.  In  their  capacity  as  citizens  of  sovereign  states 
they  become  entitled,  while  thus  travelling  or  sojourning 
abroad,  to  certain  rights  and  privileges  which  are  determined, 
as  to  their  nature  and  extent,  by  the  rules  of  international  law. 

Citizenship  and  Domicile.  The  law  of  nations,  which  in 
this  regard  is  supplemented  by  the  municipal  law  of  most 
civilized  states,  ascribes  to  each  individual  two  legal  states  or 
conditions:  one  of  these  grows  out  of  his  allegiance  to  the 
state  of  which  he  is  a  citizen  or  subject  ;  it  is  acquired,  as  has 
been  seen,  by  birth  or  naturalization,  and  constitutes  \\\s  polit- 

'  In  the  United  States,  however,  ed  elsewhere  as  citizens  of  the  Unit- 

the  curious  anomaly  is    presented  ed  States,  nor  would  they  become 

of  an  alien  being  able  to  acquire  entitled    to    its     protection    while 

the  right  to  vote,  in   many  states  travelling  abroad. — Lanz  7^s.  Ran- 

of  the    Union,  without  becoming  a  dall,  4  Dil.  425  ;  Cooley,  Const.  Law, 

citizen  of  the  United  States.     But  pp.  79-80;    Morse  on  Citizenship, 

such  persons  would  not  be  regard-  §§  I-28. 


NATIONAL  CHARACTER  1 37 

ical status ;  the  other  is  based  upon  the  well-known  principle 
of  law  that  the  validity  of  an  act  is  determined  by  the  law  of 
the  state,  or  locality,  in  which  it  occurs  or  takes  place  —  that 
is,  by  the  law  of  the  individual's  residence,  or  domicile — and 
this  relation  constitutes  the  civil  or  legal  status  of  the  individ- 
ual at  international  law.' 

National  Character  and  Domicile,  How  Determined.  It 
may  therefore  be  said  that  the  political,  or  national,  status  of 
an  individual  is  determined  by  his  citizenship,  a  quality  which 
is  itself  determined,  as  will  presently  be  explained,  by  his  birth 
or  naturalization;  his  civil,  or  legal,  status,  which  is  quite  in- 
dependent of  his  nationality,  or  allegiance,  depends  upon  his 
domicile,  which  may  be  defined  as  the  place  in  which  he  has 
voluntarily  established  himself  for  purposes  of  residence  or 
business."  So  long  as  the  individual  remains  in  the  state  of 
his  birth  or  naturalization,  his  citizenship  and  domicile  remain 
the  same ;  the  instant,  however,  that  he  leaves  the  state  of 
his  allegiance  and  passes  into  the  territory  of  a  foreign  state, 
either  as  a  traveller  or  for  residential  or  business  purposes, 
they  become  separate.  His  citizenship,  unless  he  becomes 
naturalized  in  the  new  state,  remains  unaltered,  his  domicile, 
on  the  other  hand,  changes  with  each  change  of  residence  or 

'    ■  Story,  Conflict  of  Laws,  8th  ed.  tie  of  natural  allegiance,  and  which 

pp.  40-57;  II  Kent's  Commentaries,  may  be  called  his  political  status  ; 

PP-  39~69,  note;   II  Wildman,  Int.  another  by  virtue  of  which  he  has 

Law,  p.  36-117;  IV  Phillimore,  pp,  ascribed  to  him  the  character  of  a 

42-46;  Field,  Int.  Code,  §§  261,  280-  citizen  of  some  particular  country, 

292  ;  Morse  on  Citizenship,  §§  3-24.  and  as  such  is  possessed  of  certain 

Mn  the  leading  case  of  UdnyT/j.  municipal    rights,  and   subject   to 

Udney  (L.  R.  H.  L.   §  441),    Lord  certain    obligations,   which    latter 

Chancellor   Hatherly   said :   "  The  character    is    the   civil   status,   or 

question  of  naturalization  and  al-  condition,  of   the    individual,  and 

legiance  is   distinct  from  that   of  may   be  quite  different   from    his 

domicile"   (p.   452).      Lord   West-  political   status."  —  United   States 

bury,  in  his  remarks  in  the  same  vs.  Wong  Kim   Ark,    169    United 

case,  said,  "The  law  of  England,  States,  649,  656;  Cockburn  on  Na- 

and  of  almost  all  civilized  countries,  tionality,  7  ;  Dicey  on  the  Conflict 

ascribes  to  each  individual  at  his  of   Laws,  173-177;   the  Charming 

birth   two  distinct   legal  states  or  Betsy,  2  Cranch,  64,  119;  Inglisz/J. 

conditions:  one,  by  virtue  of  which  Sailors  Snug  Harbor,  3  Peters,  99; 

he  becomes  the  subject  of  a  par-  Boyd's  Wheaton,  §  151  A;  King  vs. 

ticular  country,  binding  him  by  the  Foswell,  3  Ch.  D.  520. 


138  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

business  location,  and  the  validity  of  his  acts  and  business 
transactions,  if,  at  any  subsequent  time,  their  legality  be  drawn 
in  question,  is  determined  by  the  law  of  the  state  in  which 
they  took  place. 

Classification  of  Citizens.  Citizens  or  subjects  may  be  ei- 
ther native  born  or  naturalized.  The  first  is  a  natural,  the  sec- 
ond an  artificial,  state  of  allegiance.  A  native-born  eitizen  is  one 
born  within  the  territory  of  a  state,  and  subject  to  its  jurisdic- 
tion or  allegiance.  This  condition  of  allegiance  is  called  the 
citizenship  of  birth,  or  nativity.  It  adheres  through  life,  un- 
less terminated  by  expatriation,  or  by  process  of  law,  as  by 
banishment,  or  by  forfeiture  of  civil  rights  in  punishment  for 
a  criminal  offence.  When  the  nationality  of  an  individual  is 
drawn  in  question,  his  citizenship  by  birth  is  generally  pre- 
sumed, and  it  is  incumbent  upon  him  to  prove  any  subsequent 
change  of  allegiance.  If,  however,  he  has  acquired  another 
national  character,  by  undergoing  the  process  of  naturalization 
elsewhere,  with  the  consent  of  his  native  state  as  expressed  in 
its  laws  and  treaties,  he  is  as  fully  a  citizen  of  the  latter  state 
as  if  he  were  there  native  born,  and  is  as  fully  entitled  to  its  pro- 
tection.' 

1  The  term  native-born  citizen  is  born  within  their  territory  as  na- 
extremely  difficult  of  definition,  for  tive-born  citizens,  whatever  may 
the  reason  that  it  is  impossible  to  have  been  the  nationality  of  their 
deduce  a  uniform  rule  upon  the  parents.  Denmark,  Portugal,  Hol- 
subject  which  is  observed  by  all  land,  and  Italy  follow  substantial- 
nations.  Most  modern  states,  how-  ly  the  same  rule,  as,  with  some 
ever,  follow  one  of  two  rules,  and  exceptions,  do  France,  Belgium, 
determine  the  nationality  of  a  Baden,  Greece,  and  Spain.  The 
child,  I.  By  the  nationality  of  its  other  states  of  Europe  regard  a 
parents;  2.  By  the  place  of  its  birth,  child  as  having  the  citizenship  of 
Until  the  close  of  the  last  century  its  parents.  The  definition  stated 
the  former  rule  prevailed  among  in  the  text  applies  more  generally 
most  civilized  states.  Since  the  be-  than  any  other.  The  Fourteenth 
ginning  of  the  present  century,  and  Amendment  to  the  Constitution 
by  reason  of  the  greater  and  more  of  the  United  States  contains  the 
frequent  movement  of  individuals  provision  that  "all  persons  born  or 
from  one  state  to  another,  and  es-  naturalized  in  the  United  States, 
pecially  to  newly-settled  countries,  and  subject  to  the  jurisdiction 
the  second  rule  has  acquired  gen-  thereof,  are  citizens  of  the  United 
eral  recognition.  England  and  the  States  and  of  the  state  wherein 
United    States    claim    all   persons  they  reside."     In  the  case  of  the 


NATIONAL  CHARACTER  1 39 

A  naturalized  citizen  is  one  who  has  reh'nquished  his  citizen- 
ship of  nativity,  and  has  acquired  a  new  allegiance  in  a  state 
other  than  that  of  his  birth. 

The  citizenship  of  a  dependent  person  is  that  of  his  principal 
or  superior.  Hence  the  citizenship  of  a  child  is  that  of  his 
father,  if  legitimate,  of  his  mother,  if  illegitimate ;  of  a  ward 
that  of  his  guardian  ;  of  a  wife  that  of  her  husband.  Children 
born  on  the  high  seas,  or  while  passing  through  foreign  coun- 
tries, have  the  legal  nationality  of  their  parents.  Citizenship 
in  a  state  may  be  renounced  by  an  individual  with  a  view  to 
undergoing  the  process  of  naturalization  elsewhere.  It  may 
also  be  terminated  by  process  of  law,  as  by  sentence  of  death 
or  exile,  which  in  most  states  has  the  effect  of  destroying  civil 
rights.  It  may  be  forfeited  by  emigration,  or  by  long-contin- 
ued absence.  Once  forfeited,  it  may  be  resumed,  with  the  con- 
sent of  the  native  state,  by  a  compliance  with  the  formalities  of 
its  municipal  law. 

Naturalization.  Naturalization  is  that  process  of  municipal 
law  by  which  an  individual  effects  a  change  in  his  national 
character.'    Most  states  that  recognize  the  sanctions  of  interna- 

United  States  vs.  Wong  Kim  Ark  vidually  naturalized  by  complying 
(169  U.  S.  649),  decided  by  the  Su-  with  the  provisions  of  the  natural- 
preme  Court  in  March,  1897,  it  ization  laws.  In  re  Rodrigues,  81 
was  held  that  "a  child  born  in  the  Fed.  Rep.  337.  A  person  born 
United  States,  of  parents  of  Chi-  abroad,  on  board  of  an  American 
nese  descent,  who,  at  the  time  of  vessel,  of  parents  who  are  citizens 
his  birth,  are  subjects  of  the  Em-  of  the  United  States,  and  who  are, 
peror  of  China,  but  have  a  perma-  at  the  time,  in  the  foreign  country, 
nent  domicile  and  residence  in  the  not  with  the  design  of  removing 
United  States,  and  are  there  carry-  thither,  but  only  having  touched 
ing  on  business,  and  are  not  em-  there  in  the  course  of  a  voyage 
ployed  in  any  diplomatic  or  official  which  the  father  has  made,  as  cap- 
capacity  under  the  Emperor  of  tain  of  the  vessel,  is  to  be  regarded 
China,  becomes,  at  the  time  of  his  as  a  citizen  of  the  United  States.— 
birth,  a  citizen  of  the  United  United  States  w.  Gordon,  5  Blatch- 
States,  by  virtue  of  the  first  clause  ford,  18. 

of  the  Fourteenth  Amendment  to         '  Vattel,  liv.  i.  ch.  19.  §§  212-233; 

the  Constitution."     Native  citizens  Morse  on  Citizenship,  §§  29-60;  Os- 

of  Mexico,  whatever  may  be  their  born  vs.  Bank  of  U.  S.  9  Wheaton, 

status  from  the  standpoint  of  the  738 ;  IX  Opin.  Att.-Gen.  (U.  S.),  p^ 

ethnologist,  are  eligible  to  Ameri-  359. 
can  citizenship,  and  may  be  indi- 


I40  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

tional  law  claim  and  exercise  the  right  of  admitting  foreigners 
to  their  allegiance,  and  of  bestowing  upon  them  the  privileges 
and  responsibilities  of  citizenship.  Nearly  all  of  them  recog- 
nize the  right,  on  the  part  of  their  subjects,  of  renouncing 
their  native  allegiance  and  of  acquiring  a  new  citizenship  in  a 
foreign  state.  The  process  of  naturalization  consists  of  two 
essential  parts :  ist.  A  renunciation  of  the  old  allegiance.  In 
some  states  this  is  expressly  required,  in  others  it  is  presumed 
by  the  act  of  naturalization.  From  the  nature  of  the  allegi- 
ance it  is  obvious  that  an  individual  can  maintain  the  relation 
to  but  one  state  at  a  time.  2d.  A  formal  assumption  of  the 
duties  and  obligations  of  citizenship  in  the  new  state.  This 
is  usually  effected  by  an  oath  of  allegiance.  A  period  of  resi- 
dence is  also  required  as  a  condition  precedent  to  natural- 
ization.' 

Collective  Naturalization.  While  the  process  of  naturaliza- 
tion is  usually  applied  to  the  cases  of  individuals,  a  collective 
naturalization  of  all  the  inhabitants  is  effected  when  a  country 
or  province  becomes  incorporated  in  another  country ;  as  by 
conquest,  or  by  cession  in  accordance  with  treaty  stipulations." 
In  this  manner  the  people  brought  within  the  jurisdiction  of 
the  Union  by  the  acquisition  of  Louisiana,  Florida,  Texas,  and 
portions  of  Mexico  and  the  island  of  Porto  Rico  became  citi- 
zens of  the  United  States.  This  method,  however,  must,  from 
the  nature  of  the  case,  always  be  exceptional.' 

'For  naturalization  laws  of  the  ters, 20  Howard, 8;  United  States z/j. 

United  States,  see  Sections  2165-  Repentingy,  5  Wallace,  21 1  ;  Tobin 

2174   Revised   Statues;   for   those  vs.  Walkershaw,  McAll,  186;  XIII 

of  England,   see   33  Vict.  ch.  xiv.  Opin.  Att.-Gen.  397  ;  I  Halleck,  pp. 

May  12,  1870  ;  for  France,  see  Code  376-390;  II  Dig.  Int.  Law,  §§187, 

Civil,  liv.  i.  tit.  i.  ch.  11;   for  the  188.    All  persons  who  were  citizens 

naturalization  laws  of  other  states  of  Texas  at  the  date  of  annexation 

of  continental  Europe,  see  I  Philli-  —viz.,  December  29,  1845 — became 

more,  pp.  382-386 ;    I  Halleck,  pp.  citizens   of  the    United  States  by 

351-354;  H  Dig.  Int.  Law,  §  173.  virtue  of  the  collective  naturaliza- 

M  Phillimore,  pp.  382,  383;  Coo-  tion   effected    by  the   act  of  that 

ley,ConstitutionalLaw,  pp.  254, 255.  date.      Citizens     of     Texas     thus 

'  Cooley  Const.  Law,  p.  254;  adopted  into  the  citizenship  of  the 
American  Ins.  Co.  vs.  Canter,  i  United  States  classified  and  de- 
Peters,  541 ;  McKinney  z^j.  Saviego,  scribed.  —  XIII  Opin.  Att.-Gen, 
18  Howard,  235 ;  Jones  vs.  Me-Mas-  p.  397. 


NATIONAL  CHARACTER  I4I 

In  one  state  citizenship  may  be  acquired  with  but  little 
effort ;  in  another  with  extreme  difficulty,  or  not  at  all.  This 
is  a  matter  of  strictly  municipal  concern,  which  every  state 
regulates  for  itself  as  an  incident  of  its  sovereignty.  A  state 
may  make  such  rules  on  the  subject  of  naturalization  and  ex- 
patriation as  it  deems  just,  or  suited  to  its  policy,  the  only 
limitation  being  that  such  laws  must  not  project  themselves 
into  the  jurisdiction  of  another  state,  and  give  rise  there  to  a 
conflict  of  allegiance. 

Consequences  of  Naturalization.  The  following  conse- 
quences of  naturalization  are  now  generally  sanctioned  by  the 
usage  of  nations : 

{a.)  The  result  of  the  process  of  naturalization  is  to  effect 
an  entire  change  in  the  national  character  of  an  individual. 
He  is  as  fully  invested  with  the  rights  of  citizenship  in  the 
new  state  as  if  he  were  there  a  native-born  citizen,  and  is  en- 
titled to  the  same  extra-territorial  protection.'  Such  protec- 
tion can  be  extended  to  him  in  the  state  of  his  nativity,  how- 
ever, only  as  the  result  of  treaty  stipulation. 

(d.)  A  state,  by  exercising  its  right  of  naturalization  in  favor 
of  an  individual,  cannot  absolve  him  from  any  legal  obliga- 
tions due  to  his  former  sovereignty  at  the  time  of  his  emigra- 
tion ;  and  he  is  liable  to  be  held  to  the  performance  of  such 
obligations  should  he  return,  at  any  time,  to  the  jurisdiction 
of  his  native  state.  To  the  finality  and  completeness  of  the 
process,  therefore,  and  with  a  view  to  the  establishment  of  a 
status  which  shall  be  recognized  by  both  states — that  in  which 
citizenship  is  acquired  by  naturalization,  as  well  as  that  in 
which  it  has  been  renounced — treaty  stipulations  are  neces- 
sary.' 

{c.)  An  individual,  after  having  been  naturalized  in  a  state, 
may  renounce  such  citizenship,  and  may  renew  his  native  al- 
legiance, or  may  form  a  new  tie  of  citizenship  elsewhere. 
Should  he  return  to  his  native  state  and  settle  there,  with  the 


'  I   Phillimore,   pp.  380,  381 ;    I         'I  Halleck.  p.  356;  II  Dig.  Int. 
Halleck,  pp.  349, 350 ;  Woolsey,  §  70.     Law,  §  181 ;  Woolsey,  §  70. 


142  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

intention  of  remaining,  he  is  usually  regarded  as  having  for- 
feited his  acquired  allegiance,  and  his  citizenship  of  nativity 
is  resumed.' 

{d.)  The  municipal  laws  of  every  state  enumerate  and  define 
the  rights  and  privileges  which  may  be  acquired  by  its  natural- 
ized citizens.  In  no  case  do  such  persons  acquire  all  the  priv- 
ileges of  native-born  citizens.  The  most  usual  restrictions 
apply  to  the  holding  of  political  and  military  ofifice,  the  higher 
grades  of  which,  in  most  states,  can  only  be  filled  by  native-born 
citizens.  In  the  United  States,  whose  policy  of  naturalization 
is  extremely  liberal,  the  offices  of  President  and  Vice-President 
can  only  be  held  by  native-born  citizens. 

{e.)  A  naturalized  citizen  who  returns  to  his  native  country 
and  takes  up  his  residence  there  with  the  intention  of  remain- 
ing, is  presumed  to  have  renounced  his  acquired  citizenship. 
His  adopted  country,  in  such  an  event,  is  justified  in  declining 
to  extend  its  protection  to  a  person  who  has  ceased  to  perform 
the  duties  of  citizenship,  and  who  declines  to  be  bound  by  its 
obligations." 

Naturalization  Treaties.  As  a  conflict  of  jurisdiction 
might,  and  probably  would,  arise,  were  a  naturalized  citizen 
to  return  to  the  state  of  his  nativity,  after  having  undergone 
the  process  of  naturalization  elsewhere,  and  with  a  view  to 
confer  upon  naturalized  citizens  such  a  status  of  citizenship  as 
will  be  calculated  to  prevent  such  a  conflict  from  arising,  the 
subjects  of  naturalization  and  expatriation  have,  in  recent 
times,  been  made  the  subject  of  frequent  treaty  stipulation.' 

'  I  Halleck,  pp.  356,  357  ;  II  Dig.  turn  to  the  country  of  their  nativity 

Int.  Law,  §  176;  I  Ferguson.  §42.  with  the  intention  of  establishing 

^  I  Hallecl<,  p.  357;  II  Dig.  Int.  a  permanent  domicile  there  and  of 

Law,  §190;  I  Ferguson.  §  42';  For-  enjoying,   during   such   residence, 

eign     Relations     of     the     United  the  privileges   and  immunities  of 

States,  1884,  pp.  450-451.  American  citizenship.     This  prac- 

^  This  matter  becomes  important  tice  has  been  prevented,  to  some  ex- 

from  the  point  of  view  of  the  duty  tent,  by  the  insertion  of  a  clause  in 

of  a  state  to  protect   its  subjects  naturalization  treaties  to  the  effect 

abroad,  when,  as  in  the  case  of  the  that  such  a  return  to  the  state  of 

United  States,  foreigners  have  come  nativity,  accompanied  by  a  contin- 

within  its  territory  and  become  nat-  uous  residence  there  for  a  period  of  • 

uralized,  often  with  a  view  to  re-  two  years,  shall  operate  to  forfeit 


NATIONAL  CHARACTER  143 

Naturalization  Treaties  of  the  United  States.  The  United 
States  has  thus  far  negotiated  eleven  naturalization  treaties, 
the  first  of  them  with  the  North  German  Confederation,  in 
1868/  All  of  them,  except  that  with  Great  Britain,  stipulate 
for  a  five  years'  period  of  residence  as  a  condition  essential  to 
naturalization.  All  except  two'  expressly  provide  that  a  nat- 
uralized citizen  returning  to  his  native  country  shall  be  held 
liable  to  trial  for  all  actions  punishable  by  the  laws  of  his  na- 
tive state,  committed  prior  to  his  emigration.  Nine  of  them 
contain  the  provision  that  an  individual  returning  to  his  native 
country  shall,  after  a  residence  of  two  years,  be  presumed  to 
have  renounced  his  acquired  citizenship.  The  naturalization 
treaties  of  the  United  States  have  thus  far  successfully  endured 
the  test  9f  practical  application.  They  have  been  administered 
in  a  liberal  spirit,  and  but  few  cases  have  arisen  under  them  for 
which  they  have  not  afforded  an  adequate  remedy. 

Expatriation.  The  term  expatriation  is  applied  to  the  proc- 
ess by  which  the  allegiance  of  an  individual  to  a  particular 
state  is  terminated.     It  may  be  voluntary,  the  act  originating 

citizenship.  In  the  case  of  the  the  subject  of  inquiry  whether 
states  situated,  or  having  posses-  he  has  voluntarily  abandoned  his 
sions  in  the  West  Indies,  however,  right  to  such  protection— II  Dig. 
it  is  a  practice  of  native-born  citi-  Int.  Law,  §  171;  VIII  Opinions  of 
zens  to  visit  the  United  States  and  Attorney-General,  p.  139  ;  XI  Ibid, 
undergo  the  naturalization  process  p.  63;  Frelinghuysen  to  De  Pierre, 
with  a  view  to  obtain  protection  II  Dig.  Int.  Law,  §  271,  p.  314. 
as  American  citizens  after  their  re-  'Austria,  September  20,  1870. 
turn  to  the  state  of  their  nativity  Treaties  and  Conventions  of  the 
with  an  intention  of  establishing  a  United  States,  p.  37  ;  Baden,  July 
permanent  residence  there.  In  19,  1868,  Ibid.  p.  43 ;  Bavaria,  May 
such  cases  the  practice  of  the  26,  1888,  Ibid.  p.  49;  Belgium,  No- 
United  States  Government  is  that,  vember  16,  1868,  Ibid.  p.  66;  Den- 
where  a  citizen  removes  with  his  mark,  July  20,  1872,  Ibid.  p.  24; 
family  and  property  and  settles  Ecuador,  May  6,  1872,  Ibid.  p.  267; 
permanently  in  a  foreign  country,  Great  Britain,  May  13,  1870,  and 
neither  expressing  nor  manifesting  February  23,  1871,  Ibid.  pp.  47°- 
by  his  acts  any  intention  of  return-  476;  Hesse,  August  i,  1868,  Ibid, 
ing  permanently  to  the  United  p.  563;  North  German  Union,  Feb- 
States,  and  subsequently  demands  ruary  22, 1868,  Ibid.  p.  79°;  Sweden 
the  protection  of  the  government  and  Norway,  May  56,  1869,  Ibid.  p. 
of  the  United  States  against  the  1068;  Wiirtemberg.  July  17,  1868, 
laws  of  the  country  in  which  he  has  Ibid.  p.  1 146. 
taken  up  a  residence,  it  will  become         '  Great  Britain  and  Denmark. 


144  THE  ELEMENTS  OF   INTERNATIONAL   LAW 

with  the  individual  ;  or  it  may  result  from  the  operation  of 
law ;  in  the  latter  case  it  is  called  exile,  or  banishment.  The 
act  of  voluntary  expatriation  is,  in  strictness,  an  essential  in- 
cident of  the  naturalization  process;  for  an  individual  rarely 
puts  off  his  citizenship  unless  with  the  intention  of  changing 
his  national  character,  and  this  change  can  only  be  effected  by 
undergoing  the  process  of  naturalization. 

The  doctrine  of  indelible  allegiance  is  now  either  tacitly  or 
expressly  abandoned  by  nearly  all  states  that  are  parties  to  in- 
ternational law,  and  there  is  very  general  agreement  among 
them  as  to  the  following  fundamental  principles  :' 

{a)  From  birth,  to  the  date  of  emigration,  the  jurisdiction  of 
the  country  of  nativity  is  complete.  The  state  of  nativity  may 
therefore  determine  the  conditions  to  be  fulfilled  by  its  subjects 
before  emigration,  as  an  incident  of  its  municipal  jurisdiction. 

{b)  The  act  of  emigration  cancels  no  obligation  incurred 
prior  to  its  date. 

{c.)  A  citizen,  or  subject  of  a  state,  by  undergoing  the  proc- 
ess of  naturalization  in  a  foreign  state,  is  not  released  from 
any  obligation  to  the  state  of  his  nativity  incurred  previous  to 
his  emigration.' 

{d.)  The  acceptance  by  an  individual  of  political'  or  military 
office  in  the  service  of  a  foreign  state,  without  the  consent  of 

'  The  doctrine  of  indelible  allegi-  be  considered  an  act  highly  crim- 

ance  was  one  of  the  settled  prin-  inal   on  their  part." — Lord    Gren- 

ciples  of  the  English  common  law,  ville  to  Mr.  King,  March  22,  1797, 

and  was  maintained  in  the  United  II   American    State    Papers  (For. 

States  by  high  authorities  during  Rel.),  p.   149;    ^I   Dig.  Int.  Law,  § 

the  earlier  period  of  our  Federal  171. 

history.  Its  assertion  by  Great  '  Seecase  of  Largomarsini,  p.  150. 
Britain,  as  a  basis  for  the  claim  to  Whether  a  right  of  expatriation  ex- 
impress  native  Britons  in  foreign  ists  under  our  Constitution  and 
ships  is  set  forth  in  the  follow-  laws  considered.  If  it  does,  not 
ing  statement:  "  No  British  subject  only  a  renunciation  of  citizenship 
can,  by  such  a  form  of  renunciation  of  the  United  States,  but  actual  re- 
as  that  which  is  prescribed  in  the  moval,  for  some  lawful  purpose, 
American  law  of  naturalization,  and  the  acquisition  of  a  domicile 
divest  himself  of  his  allegiance  to  elsewhere,  are  necessary  to  effect 
his  sovereign.  Such  a  declaration  it.  — Talbot  w.  Jansen,  3  Dallas, 
of  renunciation  made  by  any  of  the  133;  Jennes  vs.  Landes,  84  Fed. 
king's  subjects  would,  instead  of  Rep.  73. 
operating  as  a  protection  to  them, 


NATIONAL  CHARACTER  I45 

his  own  government,  is,  in  general,  equivalent  to  expatriation. 
Whether  this  shall  be  permanent  or  not  will  depend  on  the 
municipal  law  of  the  individual's  state.' 

While  the  restrictions  which  are  placed  upon  emigration  by 
the  municipal  laws  of  different  states  vary  considerably,  it  is 
still  possible  to  assign  each  of  them  to  one  of  two  groups.  In 
most  of  the  Continental  states  of  Europe  where  a  system  of 
military  conscription  prevails,  the  act  of  emigration,  without 
permission,  involves  a  forfeiture  of  civil  rights.  "  Each  coun- 
try hampers  expatriation  with  such  restrictions  as  it  thinks  fit, 
and  this  must  probably  continue  to  be  the  case  so  long  as  the 
present  conscription  laws  are  retained."  '  In  England  and  the 
United  States  a  more  liberal  policy  prevails.  In  England  the 
subject  of  expatriation  is  regulated  by  the  Naturalization  Act 
of  1870,  which  concedes  the  right  of  voluntary  expatriation, 
and  regards  British  subjects  as  expatriate  so  soon  as  they  have 
completed  the  process  of  naturalization  in  a  foreign  state.  In 
the  United  States  a  difference  of  view  existed,  for  a  long  time, 
among  the  different  departments  of  the  Federal  government. 
The  view  of  the  judiciary  has  been  that  citizenship  was  a  com- 
pact between  a  state  and  each  of  its  subjects,  and  that  this 
compact  could  not  be  dissolved  by  the  latter  without  the  con- 
sent of  the  former,  as  expressed  in  its  municipal  laws.  This 
view  is  in  substance  that  maintained  by  the  English  courts  on 
the  same  subject.  The  view  of  the  political  departments  of 
the  government  has  always  been  that  the  right  of  expatriation 
was  an  individual  right,  existing  at  all  times,  and  capable  of 
being  exercised  at  will.     This  view  they  have  constantly  en- 

'II  Dig.  Int.  Law,  §  176;  III  of  the  rights  of  a  citizen.  He  be- 
Ibid.  §  392 ;  the  Safitz'sst'ma  Trz'nt-  comes,  ipso  facto,  an  alien ;  his 
dad,  I  Brockenbrough,  478 ;  Ibid,  lands  are  escheatable,  and  the 
7  Wheaton,  283.  rights  appertaining  to  citizenship, 

'^  Opinion  of  Mr.  Abbot  to  Eng-  once  lost,  cannot  be  recovered  by 

lish    Naturalization    Commission,  residence,  but  he  must  go  through 

United   States  Foreign    Relations,  the  formula  prescribed  by  law  for 

1873,  p.  1248.     If  a  native  American  the  naturalization  of  an  alien  born, 

can  expatriate  himself,  he  divests  — The     Sa7itissinia     Trinidad,    i 

himself,  by  the  very  act  of  expatria-  Brockenbrough,  478. 
tion,  as  well  of  the  obligations  as 


146  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

deavored  to  incorporate  into  the  conventional  law  of  the 
United  States.'  In  1868  an  Act  of  Congress  was  passed  declar- 
ing that  "  the  right  of  expatriation  is  a  natural  and  inherent 
right  of  all  people,  indispensable  to  the  enjoyment  of  the  rights 
of  life,  liberty,  and  the  pursuit  of  happiness." '     This  act,  which 


'  Although  the  right  of  expatria- 
tion was,  until  quite  recent  times, 
generally  denied,  the  great  migra- 
tions of  population  from  the  Euro- 
pean states  to  America,  Africa,  and 
the  islands  of  the  sea  has  operated, 
with  other  causes,  to  bring  about 
an  important  change  of  view  in 
this  respect,  and  the  doctrine  of 
indelible  allegiance  is  now  held 
much  less  strongly  than  was  for- 
merly the  case.  The  United  States 
has  given  the  individual  right  of 
expatriation  the  express  sanction 
of  its  municipal  law,  and  it  is  now 
generally  regarded  as  established 
at  international  law. — II  Dig.  Int. 
Law,  §  171 ;  the  Safitt'sszma  Trmi- 
dad,  7  Wheat.  283 ;  Jansen  vs.  the 
Vrow  Christma  Magdalena,  Bee 
Adm.  Rep.  11,  23;  VIII  Opinions 
Att.-Gen.  p.  139;  IX  Ibid.  p.  62; 
Ibid.  p.  356;  XII  Ibid.  p.  319;  IV 
Phillimore,  Int.  Law  (2d  ed.),  p.271. 
A  change  of  allegiance  from  one 
government  to  another  can  only  be 
effected  by  the  voluntary  action  of 
the  subject,  complying  fully  with 
the  naturalization  laws,  so  that 
there  is  concurrent  action  and 
assent  on  the  part  of  both  the  sub- 
ject and  the  government  to  which 
the  new  allegiance  attaches.— Jen- 
nes  vs.  Landes,  84  Fed.  Rep.  "Ji- 

*Act  of  July  27,  1868  (15  Stat,  at 
Large,  223),  §  1999  Revised  Stat- 
utes; II  Dig.  Int.  Law,  §§  171-179. 
The  declaration  in  the  act  of  July 
27,  1868  (15  Stat.  223  ;  R.  S.  §  1999), 
that  the  right  of  expatriation  is  "  a 
natural  and  inherent  right  of  all 
people,"  comprehends  our  own 
citizens  as  well  as  those  of  other 
countries  ;  and  where  a  citizen  of 


the  United  States  emigrates  to  a 
foreign  country,  and  there,  in  the 
mode  provided  by  its  laws,  formally 
renounces  his  American  citizen- 
ship, with  a  view  to  become  a  citi- 
zen or  subject  of  such  country,  this 
should  be  regarded  by  our  gov- 
ernment as  an  act  of  expatriation. 
—XIV  Opin.  Att.-Gen.  295.  The 
selection  and  actual  enjoyment 
of  a  foreign  domicile,  with  an 
intent  not  to  return,  would  not 
alone  constitute  expatriation  ;  but 
where,  in  addition  thereto,  there 
are  other  acts  done  by  him  which 
import  a  renunciation  of  his  former 
citizenship,  and  a  voluntary  as- 
sumption of  the  duties  of  a  citizen 
of  the  country  of  his  domicile, 
these,  together  with  the  former, 
might  be  treated  as  presumptively 
amounting  to  expatriation,  even 
without  proof  of  naturalization 
abroad  ;  though  the  latter  is  un- 
doubtedly the  highest  evidence  of 
expatriation. — Ibid.  A  native-born 
citizen  of  the  United  States,  who 
has  been  naturalized  in  a  foreign 
country,  and  thus  became  a  citi- 
zen or  subject  thereof,  is  to  be  re- 
garded as  an  alien  ;  and  he  cannot 
re -acquire  American  nationality, 
except  in  conformity  to  the  laws 
of  the  United  States  providing 
for  the  admission  of  aliens  to  citi- 
zenship therein.  —  IX  Ibid.  356. 
The  American  citizen  who  goes 
into  a  foreign  country,  although  he 
owes  local  and  temporary  allegi- 
ance to  that  country,  is  yet,  if  he 
performs  no  other  act  changing  his 
condition,  entitled  to  the  protection 
of  his  own  government ;  and  if, 
without  the   violation  of  any  mu- 


NATIONAL   CHARACTER 


147 


is  declaratory  in  character,  has  only  in  recent  years  received 
judicial  interpretation/ 

The  rules  of  international  law  in  respect  to  naturalization 
and  expatriation  are  illustrated  by  several  cases  arising  in  the 
foreign  relations  of  the  United  States. 

{i.)  Heinric/is  Case.  This  occurred  in  1872,  Heinrich  was 
born  in  the  city  of  New  York,  in  1850,  of  Austrian  parents 
who  were  temporarily  resident  there.  They  were  never  natu- 
ralized in  the  United  States,  and  so,  in  accordance  with  the 
naturalization  treaty  with  Austria,  were  never  citizens  of  the 
United  States.  In  1852  Heinrich  returned  with  his  parents  to 
Austria,  where  for  the  next  twenty  years  he  remained,  perform- 
ing none  of  the  duties  of  an  American  citizen,  but,  on  the  con- 
trary, enjoying  some  of  the  rights  and  privileges  of  Austrian 
citizenship.  In  1872  he  was  notified  that  he  would  be  held  to 
the  performance  of  his  military  duties  in  Austria.     To  this  he 

United  States  (as  distinguished 
from  its  judicial  policy),  in  respect 
to  the  subject  of  expatriation,  and 
can  have  no  international  or  extra- 
territorial etTect.  "That  act,  like 
any  other,  is  subject  to  alteration 
by  Congress  whenever  the  public 
welfare  requires  it.  The  right  of 
protection  which  it  confers  is  lim- 
ited   to    citizens    of    the    United 


nicipal  law,  he  should  be  oppressed 
unjustly,  he  would  have  a  right  to 
claim  that  protection,  and  the  in- 
terposition of  the  American  Gov- 
ernment in  his  favor  would  be  con- 
sidered asa  justifiable  interposition. 
But  his  situation  is  completely 
changed  where,  by  his  own  act,  he 
has  made  himself  the  subject  of  a 
foreign  power.  Although  this  act 
may  not  be  sufficient  to  rescue  him 
from  punishment  for  any  crime 
committed  against  the  United 
States — a  point  not  intended  to  be 
decided— yet  it  certainly  places  him 
out  of  the  protection  of  the  United 
States  while  within  the  territory  of 
the  sovereign  to  whom  he  has 
sworn  allegiance.  —  Murray  vs. 
the  Schooner  Charming  Betsy,  2 
Cranch,  64  [120].  See  also  For. 
Rel.  of  the  U.  S.  1878,  p.  841; 
Ibid.  1876,  p.  567;  Ibid.  1879,  P- 
973;  II  Dig.  Int.  Law,  §§  171-179. 

•  The  act  of  July  27,  1868  (sec. 
1999  Revised  Statutes  of  the  United 
States),  while  controlling  as  to  the 
subjects  to  which  it  relates,  repre- 
sents the   political   policy  of   the 


States." — Fong  Yue  Ting  vs.  U.  S. 
149  ;  U.  S.  698,  716.  In  so  far  as  it 
was  intended  to  have  extra-terri- 
torial efTect,  as  a  declaration  in 
favor  of  the  individual  right  of  ex- 
patriation, such  effect  has  been 
negatived  by  the  subsequent  legis- 
lation of  Congress  having  for  its 
purpose  the  prevention  of  Chinese 
immigration,  and  the  exclusion  of 
Chinese  subjects  from  the  terri- 
torial jurisdiction  of  the  United 
States. — See  Boyd  vs.  Thayer,  143 
U.  S.  135,  161  ;  Green  vs.  Salas,  31 
Fed.  Rep.  106  ;  IX  Opin.  Att.-Gen. 
359;  X  Ibid.  321;  XIV  Ibid.  295; 
vol.  18  American  Law  Review,  p. 
831;  23  Ibid.  759;  II  Dig.  Int.  Law, 
§§  I7i-i72a. 


148  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

demurred,  claiming  the  interposition  of  the  American  minister 
in  his  behalf,  upon  the  ground  that  he  was  an  American  citizen. 
According  to  the  several  municipal  laws  of  the  interested  states 
he  was  a  native-born  citizen— of  the  United  States  because 
born  in  its  territory  ;  of  Austria  because  of  his  Austrian  parent- 
age. After  some  correspondence  the  United  States  Govern- 
ment declined  to  interfere  in  his  behalf  on  the  ground  that  he 
had  expatriated  himself :  ist.  By  his  long  residence  in  Austria, 
by  which  he  created  the  presumption  that  he  intended  to  re- 
side there  permanently  ;  2d.  By  his  having  signified  his  will- 
ingness to  become  an  Austrian  subject,  by  obtaining  passports 
and  travelling  under  them  in  that  character. 

(2.)  Case  of  Martin  Koszta.—Y.o^z\.d.  was  a  Hungarian,  and 
so  a  native-born  citizen  of  Austria.  He  was  concerned  in  the 
revolutionary  outbreak  of  1848,  and  at  the  unsuccessful  ter- 
mination of  that  movement  effected  his  escape  to  Turkey, 
where  he  was  arrested  and  imprisoned,  but  finally  released  on 
condition  that  he  should  quit  Turkish  territory.  He  went  to 
the  United  States,  took  up  a  residence  there,  and  at  the  proper 
time  made  a  declaration,  in  due  form,  of  his  intention  to  be- 
come an  American  citizen.  In  1853,  and  so  before  the  natu- 
ralization process  had  been  completed  in  his  case,  he  went  to 
Smyrna  on  business,  and  was  there  granted  a  travelling  pass 
by  the  United  States  consul.  This  paper  conferred  upon  him, 
to  a  certain  extent,  the  national  character  of  an  American,  and 
stated  that  he  was  entitled  to  American  protection.  Not  long 
after  his  arrival  in  Smyrna  his  presence  was  made  known  to 
the  Austrian  consul,  and,  on  June  21,  1853,  Koszta  was  seized 
by  certain  persons  in  the  pay  of  the  Austrian  consulate,  and 
taken  out  into  the  harbor  in  a  boat.  At  some  distance  from 
the  shore  he  was  thrown  into  the  water,  and  was  picked  up  by- 
boats  from  the  Austrian  man-of-war  Hussar.  He  was  taken 
on  board  that  ship  and  was  there  confined  with  a  view  to  his 
ultimate  conveyance  within  Austrian  jurisdiction.' 

•  Foreign  Relations  of  the  United  Hall,  p.  237;  Snow's  Cases,  Int. 
States,  1873,  part  2,  p.  1298;  II  Law,  p.  226;  Cockburn,  National- 
Dig.  Int.  Law,  §§  175,  .198;  Law-  ity,  p.  118;  Dana's  Wheaton,  §  86, 
rence's  Wheaton,  pp.  176,  229,  929;  note  49. 


NATIONAL   CHARACTER  I49 

The  United  States  consul  at  Smyrna  protested  against  this 
arbitrary  action,  but  without  avail,  and,  as  a  last  resort,  re- 
ported the  circumstance  to  the  American  Legation  at  Con- 
stantinople. The  St.  Lout's,  a  public  armed  vessel  of  the 
United  States,  commanded  by  Captain  Ingraham,  happened 
to  be  lying  in  the  harbor  of  Constantinople  at  the  time, and  Cap- 
tain Ingraham  was  requested  by  the  charge  d'affaires  to  pro- 
ceed to  Smyrna  and  demand  Koszta's  release,  if  necessary  by  a 
resort  to  force.  In  compliance  with  these  instructions  Captain 
Ingraham  went  to  Smyrna  and  demanded  the  surrender  of 
Koszta,  stating  that  unless  he  were  delivered  up  he  should 
take  him  by  force  of  arms.  As  such  a  conflict,  aside  from  its 
international  consequences,  would  have  led  to  the  certain  de- 
struction of  much  of  the  shipping  in  the  harbor,  and  to  the 
possible  destruction  of  the  town  itself,  the  French  consul 
offered  his  mediation,  and  Koszta  was  delivered  into  his  cus- 
tody pending  the  result  of  the  negotiations  in  his  case.  As  a 
result  Koszta  was  conveyed  back  to  the  United  States,  the 
Austrian  government  reserving  the  right  to  proceed  against 
him  should  he  ever  return  to  Turkish  territory. 

This  case  has  been  frequently  cited  as  illustrating  many 
phases  of  the  question  of  citizenship  and  allegiance.  The 
following  are  the  more  important   considerations  involved: 

(«.)  The  papers  in  Koszta's  possession  gave  him  the  char- 
acter of  an  American  citizen  in  so  far  as  the  Turkish  Govern- 
ment was  concerned,  and  entitled  him  to  its  protection.  If  he 
were  not  entitled  to  those  papers,  the  question  resulting  was 
one  for  decision  between  Turkey  and  the  United  States. 

(^.)  The  action  of  the  Austrian  consul  was  a  gross  violation 
of  the  sovereignty  of  Turkey,  and  a  serious  infraction  of  the 
rules  of  international  law. 

(fT.)  The  use  of  force  by  Captain  Ingraham  to  secure  the  re- 
lease of  Koszta  was  also  without  warrant  of  international  law. 
It  differed  from  that  of  the  Austrian  ofificials  only  in  that  its 
effects  were  to  vindicate  the  sovereignty  of  Turkey.  Upon 
this  ground  it  was  defended  at  the  time,  and  generally  justified. 

(df.)  Koszta  was  not  an  American  citizen.     His  declaration 


150  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

of  intention  to  become  one,  however,  entitled  him  to  a  quali- 
fied amount  of  protection  on  the  part  of  the  United  States  ; 
especially  in  a  state  where  he  had  the  character  of  an  alien, 
pure  and  simple,  and  where  the  question  of  his  partially  ac- 
quired allegiance  was  not  complicated  by  considerations  aris- 
ing out  of  his  allegiance  of  nativity. 

{e.)  Had  his  case  been  drawn  in  question  by  any  disinter- 
ested power,  Koszta  would  have  been  regarded  as  an  Austrian 
subject.  This  would  have  resulted  from  the  application  of  the 
rule  of  nativity  to  his  case. 

(/.)  If  a  formal  decree  or  sentence  of  exile  was  had  against 
Koszta  in  Austria,  that  power  could  have  retained  jurisdiction 
over  him  to  the  extent  of  giving  perpetual  effect  to  its  decree 
of  banishment,  by  preventing  his  return  to  Austrian  territory. 

Largomarsini  s  Case.  Largomarsini  was  born  in  Italy,  of 
Italian  parents,  and  when  two  years  of  age  was  brought  by 
them  to  the  United  States.  Upon  reaching  the  proper  age, 
and  having  fulfilled  the  usual  conditions  of  residence  and  in- 
tention, he  was  naturalized  in  San  Francisco,  a  place  which  he 
had  chosen  as  his  durable  abode.  He  resided  there  and  else- 
where in  California  until  1875,  when  he  visited  Italy  for  a  tem- 
porary purpose,  and  with  the  intention  of  returning  to  the 
United  States  and  of  resuming  his  residence  there  at  the  end 
of  a  year.  A  few  days  after  his  arrival  in  Italy  he  was  notified 
that  he  had  been  drafted  into  the  military  service.  Claiming 
to  be  a  citizen  of  the  United  States,  he  refused  to  obey  the 
summons,  and  upon  this  refusal  he  was  arrested  as  a  deserter 
from  the  Italian  military  service.  His  case  was  appealed  to 
the  highest  military  tribunal,  where  the  charge  of  desertion 
was  not  sustained,  but  he  was  held  to  the  performance  of  his 
military  service.  Intervention  was  made  in  his  behalf  by  the 
United  States  minister,  but  without  avail,  the  refusal  to  release 
him  being  based  upon  the  ground  that  he  was  an  Italian  sub- 
ject, and  that  his  naturalization  in  the  United  States  had  no 
effect  upon  his  individual  status  when  he  returned  to  Italy.' 

•  For.  Rel.  of  the  United  States,  1878,  pp.  458-464;  Ibid,  1879,  p.  600. 


NATIONAL   CHARACTER  15t 

Case  of  Ungar.  Leopold  Ungar  was  born  In  Bavaria,  but 
emigrated  to  the  United  States,  where  he  completed  the  nat- 
uralization process  in  1856.  In  1857  he  obtained  a  passport 
from  the  Department  of  State  and  returned  to  Europe,  pass- 
ing and  repassing  several  times  between  the  two  countries. 
The  last  vis^  oi  his  passport  bore  the  date  of  1861.  In  1873 
he  arrived  in  Egypt  from  Italy,  under  an  assumed  name,  and 
was  arrested  at  the  instance  of  the  Prussian  consul  in  Alexan- 
dria, with  a  view  to  his  extradition  for  a  crime  committed  in 
Cologne.  He  claimed  to  be  an  American  citizen,  but  protec- 
tion was  denied  him.  i.  Because  he  had  expatriated  himself; 
this  was  proven  by  long  absence  from  the  United  States  with 
no  intention  of  returning.  2.  Because  he  had  voluntarily  sub- 
jected himself  to  Prussian  jurisdiction  by  committing  a  crime 
within  Prussian  territory.  His  flight  to  Egypt  in  no  way  af- 
fected the  question  of  his  national  character,  as  he  was  subject 
to  the  extradition  process  in  Egypt,  on  the  demand  of  Prussia, 
in  accordance  with  the  terms  of  an  existing  treaty  of  extra- 
dition between  the  two  countries. 

Aliens  and  Domicile. 

Aliens.  The  term  alien  is  applied  to  any  person  within  the 
territory  of  a  state,  at  any  time,  who  is  not  a  citizen  or  subject 
of  that  state,  either  by  birth  or  naturalization.  These  foreign- 
ers or  strangers  are  susceptible  of  classification  into, 

(a.)  Aliens,  ox  Aliens  Proper,  including  all  those  persons  who 
are  sojourning  temporarily  within  the  state,  or  who  are  passing 
through  its  territory. 

(<^.)  Domiciled  Strangers,  including  all  those  persons  who 
have  acquired  a  legal  domicile  at  some  place  within  its  terri- 
torial jurisdiction. 

The  peculiar  view  of  allegiance  which  prevailed  during  the 
feudal  period  survived  the  downfall  of  the  system  in  which  it  had 
originated,  and,  in  the  form  of  the  doctrine  of  indelible  allegi- 
ance, became  part  of  the  internal  political  policy  of  most  Euro- 
pean states.  An  individual,  born  a  subject,  always  retained 
that  character.     Such  personal  and  property  rights  as  he  was 


152  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

permitted  to  enjoy  grew  out  of  the  fact  of  his  allegiance  to 
his  native  sovereign,  and  were  not  recognized  beyond  that 
sovereign's  territories.  The  result  was  to  make  the  lot  of  an 
alien  a  particularly  hard  one  in  early  times.  So  soon  as  he 
passed  the  frontier,  and  entered  the  territory  of  another  state, 
he  was  regarded  as  being  without  rights.  Such  privileges 
of  residence  and  occupation  as  he  enjoyed  were  held  upon 
sufferance  only,  and  could  be  withdrawn  or  cancelled  at  the 
pleasure  of  the  sovereign  in  whose  territory  he  was  resi- 
dent. If  he  died  in  a  foreign  country  his  property,  both  real 
and  personal,  was  forfeited  to  the  sovereign  in  accordance 
with  the  droit  d'aiibaine;'  or,  at  a  later  period,  when  more 
humane  usages  had  begun  to  prevail,  was  heavily  taxed  when 
withdrawn  from  the  territory,  in  accordance  with  the  droit  de 
detraction? 

As  civilization  increased,  and  as  commerce  and  interstate 
intercourse  became  general,  these  harsh  provisions  were  grad- 
ually relaxed,  though  they  did  not  finally  disappear  until  the 
beginning  of  the  present  century.  Other  restrictions  remained, 
however,  notably  a  disability  in  the  matter  of  holding  land,  and 
"  it  is  only  of  late  years  that  the  right  of  holding  lands  on  the 
same  conditions  as  subjects  has  been  conceded  to  foreigners 
by  most  countries."  ^    In  the  matter  of  holding  and  transferring 

'  I  De  Martens,  §  90;  Kliiber,  §§  personbelonging  to  one  of  the  con- 

82,  135  ;  Dana's  Wheaton,  §  82.  federated  states  is  to  be  treated  in 

^  I  De  Martens,  §90;  KIuber,§63;  every  other  as  a  born  native,  and 

Dana's  Wheaton,  §  82.  to  be  permitted  to  acquire  real  es- 

^  Boyd's  Wheaton,  p.  112:  "In  tate.^  But,  as  regards  other  coun- 
Belgium  this  was  effected  by  the  tries,  the  laws  of  Bavaria,  Prussia, 
law  of  the  27th  of  April,  1865.=*  Saxony,  and  Wiirtemberg  exact  for 
Russia  conceded  the  privilege  in  their  own  subjects,  when  abroad, 
i860.''  Some  of  the  Swiss  cantons  the  same  rights  they  extend  to  for- 
do not  even  now  permit  foreigners  eigners  in  their  own  dominions.'' 
to  hold  real  property  without  the  .  r  /t^  v  i.\  t^t  *  v  .• 
express   sanction   of   the   cantonal  ^  Report  of  (English)  Naturahzat.^ 

^                ..           1           ♦u     „     K^     „  Commission,    1869,   p.   115.     "Ibid.  p. 

government     unless    there    be    a  ^^g      ^  11,;^.  p.  1*31!^   d  c'ivil  Code  of 

treaty   to    that    effect.^      Austria,-!  Austria,    §33       «=  Civil    Code   of    the 

the     Netherlands,^    and    Sweden  Netherlands,    §§884-957.      'Swedish 

only  accord  the  right  on  condition  statute  of   Inheritance,  chap.  xv.  §  2. 

of    reciprocity    in    the    foreigner's  g  Hertslet,  Map  of  Europe  by  Treaty, 

country.     The  constitution  of  the  art.  iii.  vol.  iii.  p.   1931.     *"  Report  of 

German  empire  provides  that  every  (English)  Naturalization    Commission, 


NATIONAL   CHARACTER 


153 


personal  property,  the  practice  of  nations  has  been  much  more 
liberal.  This  difference  of  view  in  regard  to  the  two  kinds  of 
property  was  due  in  part  to  the  fact  that,  in  early  times,  only 
land  and  immovables  were  recognized  as  having  the  quality  of 
property,  and  in  part  to  the  fact  that  personal  property, 
especially  in  the  form  of  money  and  valuables,  could  be  easily 
concealed  and  withdrawn  from  the  operation  of  the  law.  The 
result  was  that  personal  property  began  to  be  made  the  sub- 
ject of  legal  regulation  at  a  much  later  date,  and  when  more 
enlightened  views  had  begun  to  prevail  upon  the  subject  of 
ownership  and  property  regulation.' 

Treatment  of  Aliens.  From  the  principle  that  all  persons 
within  the  territory  of  a  state,  at  any  time,  are  subject  to,  and 
are  protected  by,  its  municipal  laws,  it  follows  that  aliens,  so 
long  as  they  obey  those  laws,  will  be  as  fully  protected  by 
them  as  are  the  citizens  of  the  state  in  which  they  are  resi- 
dent.'    They  are  subject  to  some  restrictions,  however,  from 


In  Italy,  Denmark,  and  Greece' 
aliens  are  under  no  disabilities  in 
this  respect.  The  ownership  of 
land  in  the  United  States  is  regu- 
lated by  the  laws  of  the  individual 
states  of  the  Union.  Some  states 
impose  no  restrictions  on  foreign- 
ers; others  require  residence  and 
an  oath  of  allegiance ;  in  others 
a  declaration  of  an  intention  to 
become  a  naturalized  citizen  of 
the  United  States  is  necessary."  J 
"  Feudal  principles  were  maintain- 
ed so  long  in  England  that,  until 
the  year  1870,  an  alien  was  inca- 
pable of  holding  land  for  more  than 
twenty-one  years  ;  that  is,  he  could 
not  purchase  a  freehold.  This, 
however,  was  remedied  by  the  Nat- 
uralization   Act    of    1870,"    which 

1869,  pp.  114,  124,  129,  138.  '  Ibid. 
p.  116;  Italian  Civil  Code,  art.  iii. ; 
Civil  Code  of  Greece,  art.  v.  >  Report 
of  (English)  Naturalization  Commission, 
1869,  P-  131-  "^  33  ^"^^1  34  Victoria, 
chap.  xiv.  §  2.  See  also  For.  Rel.  U.  S. 
1884,  pp.  174-187  ;  1890,  pp.  276-280. 


relieved  aliens  of  most  of  their 
disabilities,  and,  as  regards  land, 
placed  them  on  the  same  footing 
as  subjects." — Boyd's  Wheaton,  p. 

113- 

'  Amos,  Science  of  Law,  p.  164. 

^  Aliens  domiciled  in  the  United 
States  owe  a  local  and  temporary 
allegiance  to  the  Government  of 
the  United  States  ;  they  are  bound 
to  obey  all  the  laws  of  the  country, 
not  immediately  relating  to  citizen- 
ship, during  their  residence,  and 
are  equally  amenable  with  citizens 
for  any  infraction  of  those  laws. 
Those  aliens  who,  being  domiciled 
in  the  country  prior  to  the  rebel- 
lion, gave  aid  and  comfort  to  the 
rebellion,  were,  therefore,  subject 
to  be  prosecuted  for  violation  of 
the  laws  of  the  United  States 
against  treason  and  for  giving  aid 
and  comfort  to  the  rebellion. — Car- 
lisle vs.  United  States,  16  Wallace, 
147.  It  is  the  duty  of  the  President, 
to  whom  the  care  of  our  foreign  re- 
lations is  committed,  to  take  all  law- 


154 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


which  citizens  are  exempt;  and,  on  the  other  hand,  are  not 
held  to  the  performance  of  certain  duties  to  which  citizens  are 
liable  from  the  fact  of  their  allegiance.  The  most  important 
of  these  is  an  exemption  from  personal  imposts'  and  from  ob- 
ligatory military  service — a  duty,  from  its  nature,  incumbent 
upon  citizens  alone.'^ 


ful  measures  for  the  protection  of 
alien  subjects  of  a  state  with  which 
the  United  States  are  at  peace, 
who  shall  have  come  within  our 
territory  and  placed  themselves 
under  the  safeguard  of  our  laws 
with  the  consent  of  the  general 
and  state  governments.— Ill  Opin- 
ions of  Attorney- General,  p.  253. 
But  where  aliens  have  suffered 
violence  from  citizens  of  theUnited 
States,  they  can  be  protected  only 
by  the  redress  to  be  afforded  in  the 
courts  and  the  special  interposition 
of  the  legislature. — Ibid.  The  state 
courts  only  have  jurisdiction  of  the 
criminal  offence  in  such  cases;  the 
circuit  courts  of  the  United  States 
of  a  civil  action,  where  the  of- 
fenders are  citizens.— Ibid. 

'  The  term  impost,  as  here  used, 
refers  to  impositions  of  personal 
service,  as  for  jury  dutj'.  etc.,  and 
to  impositions  of  money  in  the  way 
of  poll-taxes,  or  other  levies  upon 
citizens  alone. 

'^"During  the  American  Civil 
War  the  protection  of  England 
was  frequently  demanded  by  Brit- 
ish subjects  against  conscription  in 
the  United  States  Army.  Lord 
Lyons  was  instructed  that  there  is 
no  rule  or  principal  of  international 
law  which  prohibits  the  govern- 
ment of  any  country  from  requir- 
ing aliens  resident  within  its  terri- 
tories to  serve  in  the  militia  or 
police  of  the  country,  or  to  contrib- 
ute to  the  support  of  such  estab- 
lishments." But  her  Majesty's  gov- 
ernment would  not  consent  to 
British  subjects  being  compelled 
to  serve  in   the   armies  of  either 


party  where,  besides  the  ordinary 
incidents  of  battle,  thej^  would  be 
exposed  to  be  treated  as  rebels  or 
traitors  in  a  quarrel  in  which,  as 
aliens,  they  had  no  concern,  and  on 
their  return  to  England  would  in- 
cur the  penalties  imposed  on  Brit- 
ish subjects  for  having  taken  part 
in  the  war.^  All  who  could  prove 
their  British  nationality  were,  ac- 
cordingly, exempted  from  military 
service.''  But  if  a  British  subject 
had  become  naturalized  in  Amer- 
ica, England  refused  to  protect  him 
so  long  as  he  remained  there.''  In- 
dividuals who  had  declared  their 
intention  of  becoming  naturalized, 
but  had  not  completed  the  neces- 
sary formalities,  were  also  treated 
as  aliens,  and  exempted  f  but  her 
Majesty's  government  declined  to 
interfere  in  their  behalf  if  they  had 
voted  at  elections,  or  in  any  way 
exercised  any  of  the  exclusive  priv- 
ileges of  a  citizen. ^  In  1863  an  Act 
of  Congress  was  passed  special!}'' 
including  '  intended  '  citizens  in  a 
further  enrolment  of  the  militia ;« 
and  a  proclamation  of  the  President 
allowed  sixty-fiv^e  days  to  such  per- 
sons to  leave  the  country,  or  be- 
come liable  to  be  enrolled  by  re- 
maining.     To   this  Great   Britain 

°  Despatch  to  Lord  Lyons,  No.  76,' 
April  4,  1S61.  '•Ibid.  No.  349.  Octo- 
ber 7,  1 86 1:  Parliamentary  Papers, 
North  America,  1S64,  No.  13,  p.  34. 
•^  Despatch  to  Lord  Lyons,  No.  379; 
July  29,  1861.  "*  Ibid.  No.  259,  June 
7,  1862.  '  Mr.  Seward  to  Mr.  Stuart, 
August  20,  1S62.  f  Consular  Circular 
from  Mr.  Stuart,  No.  99,  July  25,  1862. 
t  United  States  Statutes  at  Large,  vol, 


NATIONAL   CHARACTER 


155 


In  states  where  a  military  establishment  is  maintained  by  a 
system  of  voluntary  enlistments,  few  restrictions  are  placed 
upon  the  admission  of  aliens  to  the  military  or  naval  service. 
By  such  an  act,  however,  and  during  the  period  of  such  ser- 
vice, an  alien  forfeits  the  protection  of  his  own  government, 
and  must  look  for  protection  to  the  state  under  whose  flag  he 
serves.  In  nearly  all  states  aliens  are  debarred  from  holding 
public  office  of  a  political  character,  and  are  denied  the  right 
of  suffrage,  when  that  right  exists.  Some  states  still  place 
them  under  special  disabilities  in  the  matter  of  holding  land, 
or  engaging  in  business,  or  following  certain  trades  or  profes- 
sions ;  others  make  this  conditional  upon  reciprocity.'  In  nearly 


acquiesced,  the  period  allowed  for 
departure  being  deemed  sufficient.'' 
It  was  regarded  as  an  established 
principle  that  a  gov^ernment  might, 
by  an  ex  post  facto  law,  include  in 
its  conscription  any  persons  perma- 
nently resident  in  its  territory,  pro- 
vided it  allowed  them  reasonable 
time  and  facilities  for  departure 
on  the  promulgation  of  such  a 
law."'  In  the  courts  of  the  United 
States  alien  friends  are  entitled  to 
the  same  protection  in  their  rights 
as  citizens.  Nor  are  their  suits 
barred  by  proof  that  the  remedy 
is  not  reciprocal. — Tayler  vs.  Car- 
penter, 3  Story,  458.  Aliens  in 
the  United  States  are  not  liable 
to  militia  duty.  For  treatment  of 
alien  enemies  by  the  United  States, 
see  §§  4067-4070  of  the  Revised 
Statutes  of  the  United  States. 

'  It  is  clear,  by  the  common  law, 
that  an  alien  can  take  lands  by 
purchase,  though  not  by  descent ; 
or,  in  other  words,  he  cannot  take 
by  the  act  of  law,  but  he  may  by 
the  act  of  the  party.     This  princi- 

xii.  p.  731.  ''Despatch  to  Lord  Lyons, 
No.  485,  .\iigiist  31,  1863.  'Parlia- 
mentary Papers,  North  America,  1863, 
No.  13,  p.  34;  Despatch  to  Lord  Lyons, 
No.  293,  November  27,  1S62.  Boyd's 
Wheaton,  pp.  209,  210. 


pie  has  been  settled  in  the  j'ear- 
books,  and  has  been  uniformly  rec- 
ognized as  sound  law  from  that 
time.  Nor  is  there  any  distinction, 
whether  the  purchase  be  by  grant 
or  by  devise.  In  either  case,  the 
estate  vests  in  the  alien,  not  for  his 
own  benefit,  but  for  the  benefit  of 
the  state ;  or,  in  the  language  of 
the  ancient  law,  the  alien  has  the 
capacity  to  take,  but  not  to  hold 
lands,  and  they  may  be  seized  into 
the  hands  of  the  sovereign.  But 
until  the  lands  are  so  seized,  the 
alien  has  complete  dominion  over 
the  same,  .  .  .  and  may  convey  the 
same  to  a  purchaser.  ...  In  re- 
spect to  these  general  rights  and 
disabilities,  there  is  no  admitted 
difference  between  alien  friends 
and  alien  enemies.  During  war 
the  property  of  alien  enemies  is 
subject  to  confiscation  jure  belli, 
and  their  civil  capacity  to  sue  is 
suspended.  But  as  to  capacity  to 
purchase,  no  case  has  been  cited 
in  which  it  has  been  denied;  in  the 
Attorney-General  z'i-.  Wheeden  and 
Shales,  Park.  Rep.  267,  it  was  ad- 
judged that  a  bequest  to  an  alien 
enemy  was  good,  and,  after  peace, 
might  be  enforced.  Indeed,  the 
common  law,  in  these  particulars, 
seems  to   coincide    with   the  jus 


156  THE   ELEMENTS   OF   INTERNATIONAL    LAW 

all  the  Continental  states  of  Europe  aliens  are  placed  at  some 
disadvantage  as  regards  subjects  in  instituting  or  maintaining 
suits  at  law,  and  in  testifying  in  certain  cases.  They  also 
require  a  register  of  aliens  to  be  kept,  and,  in  many  instances, 
claim  and  exercise  the  right  of  expelling  them  from  their  ter- 
ritories for  cause.  Many  of  these  restrictions  are  reasonable, 
and,  if  they  are  generally  known,  furnish  no  ground  of  com- 
plaint to  other  states  whose  citizens  are  subjected  to  them. 
In  some  cases,  notably  in  certain  Mohammedan  and  pagan 
countries,  whose  systems  of  government  and  law  are  radically 
different  from  those  of  Christendom,  the  separate  treatment 
of  aliens  has  been  made  the  subject  of  treaty  stipulation. 

Domicile 

Nature  of  the  Relation.  Of  all  the  persons  residing  in  a 
state  at  any  given  time  two  classes  have  elsewhere  been 
described  —  aliens  and  citizens.  Between  these  extremes  is 
found  a  large  class  of  persons  who  are  not  temporary  sojourn- 
ers, neither  have  they  the  quality  of  citizenship.  Their  resi- 
dence is  not  transient,  and  they  are  aliens  only  in  the  sense 
that  they  are  not  members  of  the  body  politic,  owing  it  the 
allegiance  of  defence,  and  for  that  reason  do  not  enjoy  the 
rights  and  political  privileges  of  citizens.  These  persons  are 
called  domiciled  strangers.  While  their  residence  is  to  some 
extent  permanent,  they  are  unwilling,  for  reasons  of  their  own, 

geniium.  —  Fairfax's    devisee    7'^-.  Peters,  413.    In  the  Chinese  Exclu- 

Hunter's  lessee,  7  Cranch,  603(619).  sion  case  (130  United  States,  603), 

An    alien    who    becomes    natural-  it  was  held  by  the  Supreme  Court 

ized  may  hold  land  acquired  before  of   the    United    States    that    "the 

his  naturalization.     A  grant  by  a  Government  of  the  United  States, 

state  to  an  alien  is  not  void;   he  through  the  action  of  the  legislative 

may  take,  though  he  cannot  hold  department,    can    exclude     aliens 

against    the    state.  —  Governeur's  from    its    territory." — Nishimura 

heirs  vs.  Robertson,  11   Wheaton,  Ekiu  vs.  United  States,  142  United 

332.     Neither  the  Constitution  nor  States,    651;    Fong  Yue   Ting  vs. 

acts    of    Congress    required    that  United  States,  149  United  States, 

aliens  should  reside  abroad  to  en-  698;    Lem    Moon  Sing  vs.  United 

title  them  to  sue  in  the  courts  of  States.  158  United  States,  538,  547. 

the  United  States. — Breedlove  and  Ih  re  Moses,  83  Fed.  Rep.  995. 
Robeson  vs.  Nicolet   and  Sigg,  7 


NATIONAL   CHARACTER  1 57 

to  give  up  their  citizenship  of  nativity ;  and  it  is  not  incon- 
sistent with  their  peculiar  relation  that  they  should  cherish  a 
remote  intention  of  returning  to  their  native  countries  should 
it  ever  become  desirable  to  do  so. 

Definition  of  Domicile.  Domicile  may,  therefore,  be  de- 
fined as  the  place  which  an  individual  has  freely  chosen  as 
the  centre  of  his  domestic  and  jural  relations,  and  a  domiciled 
stranger  is  an  alien  who,  for  purposes  of  residence  or  business, 
has  selected  a  certain  place  as  his  durable  abode,  with  no 
present  intention  of  removing  therefrom.' 

Distinction  between  Citizenship  and  Domicile.  There 
has  been  some  confusion  expressed  in  the  works  of  writers 
upon  the  subject  as  to  the  precise  meaning  of  the  terms  citi- 
zenship and  domicile.  From  the  definition  given  it  will  be 
seen  that  they  are  not  synonymous  ;  indeed,  in  strictness, 
they  have  no  possible  connection  with  each  other.  The  citi- 
zen is  a  creature  of  the  municipal  law  of  a  state,  with  which 
other  states  ordinarily  have  no  concern.  The  rules  of  domicile 
determine  the  status  of  an  individual  from  the  standpoint  of 
international  law,  and  have  no  necessary  connection  with  citi- 
zenship. Domicile  is  a  fact,  and,  when  the  domicile  of  an  in- 
dividual is  drawn  in  question,  is  proved,  like  other  facts,  by 
evidence  as  to  residence  or  intention.  CitizensJiip  results  from 
birth,  or  the  operation  of  law,  and  is  acquired  by  undergoing  a 
legal  process,  the  various  steps  of  which  are  regulated  by  the 


•  It  is  remarkable  that  no  defini-  277 ;   IV  Phillimore,  pp.  32-46  ;  I 

tion  of  the  term  "domicile"  has  Halleck,  p.  361 ;  II  Wildman,  pp.36, 

as  yet  been   universally  accepted.  37;   Woolsey,  §71;  Glenn,  p.  233; 

It  has  been  defined  as  "  a  residence  Risley,  Law  of  War,  pp.  94,  95  ;  I 

at  a  particular  place  accompanied  Lorimer,  Institutes,  pp.  426-435; 

by  positive  or  presumptive  proof  Hall,  pp.  239,  279,  498,  500 ;  Vattel, 

of  an  intention  to  remain  there  for  liv.  i.  chap.  xix.  §  218 ;    Dicey,  pp. 

an  unlimited  time."     This  defini-  i,  3;   Story,  Conflict  of  Laws,  41; 

tion  is  approved  by  Phillimore  in  his  Bruce  vs.  Bruce,  2  Bosanquet  and 

work  on  the  subject.    By  the  term  Puller,  28,  note  ;  Bampde  vs.  John- 

"  domicile,"  in  its  ordinary  accep-  son,    3    Vesey,    201;    Stanley    vs. 

tation,  is  meant  the  place  where  a  Bernes,  3  Hagard   Ecc.  Rep.  374, 

person  lives  and  has  his  home. —  437;  Best  on  Presumptions,  p.  235  ; 

Boyd's  Wheaton,  §i5iB;   Twiss,  Mitchell  z/5.  United  States,  21  Wal- 

Law  of  Nations  in  Peace,  pp.  275-  lace,  350. 


158  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

municipal  law  of  a  state.  It  is,  moreover,  a  matter  of  legal 
record,  and,  when  the  citizenship  of  an  individual  is  ques- 
tioned, it  is  established  by  the  production  of  a  duly  authenti- 
cated certificate  of  origin,  or  naturalization.' 

Rules  of  Domicile.  The  rules  of  domicile,  in  so  far  as 
they  are  recognized  and  sanctioned  by  international  law,  must, 
like  all  its  rules,  be  based  upon  the  general  consent  of  nations. 
A  state  may,  by  its  municipal  laws,  grant  certain  privileges  to 
domiciled  strangers,  but  those  privileges  are  local  in  character, 
not  international,  and  can  have  no  effect  beyond  the  terri- 
torial jurisdiction  of  the  state  granting  them.  In  a  similar 
way  several  states  may  arrange,  by  treaty,  to  secure  for  their 
subjects  special  privileges  as  to  domicile  in  each  other's  terri- 
tories, or  may  obtain  for  them  special  exemptions  from  the 
operation  of  certain  municipal  laws.  These  privileges  and 
exemptions,  however,  are  restricted  in  their  operation  to  the 
territorial  limits  of  the  states  that  participate  in  the  treaty. 
It  is  held  by  some  authorities  that  an  individual  may  also  have 
a  domicile  in  several  places  at  the  same  time ;'  an  opposite 
rule,  however,  prevails  as  to  citizenship,  and  an  individual,  in 
his  character  as  a  citizen  or  subject,  can  owe  allegiance  to  but 
one  state  at  the  same  time. 

{a.)  To  constitute  domicile  there  must  be  actual  residence, 
with  the  intention  of  remaining.  This  intention  is  inferred 
from  the  acts  of  an  individual.  If  he  hires  or  purchases  a 
place  of  residence,  enters  into  business  relations,  makes  con- 
tracts which  will  require  considerable  time  for  their  execution, 
or  does  any  acts  of  a  similar  character  which  are  susceptible  of 
being  proved  by  the  testimony  of  witnesses,  a  court  will  de- 
duce from  such  evidence  the  intention  of  remaining  which 
constitutes  domicile.* 

'  Lawrence,  Int.  Law,  §117;  Hall,  but  see  Dicey  on  Domicile,  pp.  61- 

§§  72,  87  ;  I  Twiss,  §  171  ;  I  Fergu-  66  ;  Lawrence,  Int.  Law,  §  1 17- 
son,  §§  39,  40.  ^  Dice3%  pp.  1 19-147;   IV  Philli- 

"^  IV  Phillimore,  pp.  47-53;  Di-  more,  pp.   151-204;  I  Halleck,  pp. 

gest,  liv.  1.  tit.  i.  §  5  ;  Domat,  liv.  i.  362-390;  Boyd's  Wheaton,  §  151D. 

tit.  xvi.  §  56;   Duranton,  Cours  de  The  presumption  of  law  is  that  the 

Droit  Fran9ais,  liv.  i.  tit.  iii.  §  357  ;  domicile  of  origin  is  retained,  un- 


NATIONAL   CHARACTER 


159 


(b.)  Domicile  must  be  freely  chosen/  Constrained  residence 
does  not  give  domicile.  By  constrained  residence  is  meant 
any  residence  not  the  result  of  free  choice  on  the  part  of  an 
individual  otherwise  capable  of  free  action.^  The  residence 
of  an  officer  in  the  military  or  naval  service  is  of  this  charac- 
ter/ as  is  that  of  ambassadors,  their  secretaries,  and  the  at- 
taches of  a  legation.  The  domicile  of  these  persons  is  the 
same  as  their  citizenship,  native  or  acquired.  They  undergo 
no  change  of  domicile,  no  matter  how  long  they  may  be  absent 
from  home  or  resident  abroad,  provided  such  residence  has  an 
official  character,  and  is  in  obedience  to  military  orders,  or  is 
in  the  exercise  of  diplomatic  functions.*  The  domicile  of  a 
person  undergoing  a  sentence  of  imprisonment,  exile,  or  ban- 


less  the  change  is  proved,  and  the 
burden  of  proving  it  is  upon  him 
who  alleges  the  change.  .  .  .  But 
what  amount  of  proof  is  necessary 
to  change  a  domicile  of  origin  into 
a.  prima  facte  domicile  of  choice? 
It  is  residence  elsewhere,  or  where 
a  person  lives  out  of  the  domicile 
of  origin.  That  repels  the  pre- 
sumption of  its  continuance,  and 
casts  upon  him  who  denies  the 
domicile  of  choice  the  burden  of 
disproving  it.  Where  a  person 
lives  is  ta^tn  prz'ina  facte  X.O  be  his 
domicile  until  other  facts  establish 
the  contrary.  It  is  difficult  to  lay 
down  any  rule  under  which  every 
instance  of  residence  could  be 
brought  which  may  make  a  domi- 
cile of  choice.  But  there  must  be, 
to  constitute  it,  actual  residence  in 
the  place,  with  the  intention  that 
it  is  to  be  a  principal  and  perma- 
nent residence.  That  intention  may 
be  inferred  from  the  circumstances 
or  condition  in  which  a  person  may 
be  as  to  the  domicile  of  his  origin, 
or  from  the  seat  of  his  fortune,  his 
family,  and  pursuits  of  life.  A  re- 
moval which  does  not  contemplate 
an  absence  from  the  former  domi- 
cile for  an  indefinite  and  uncertain 


time  is  not  a  change  of  it.  But 
when  there  is  a  removal,  unless  it 
can  be  shown,  or  inferred  from  cir- 
cumstances, that  it  was  for  some 
particular  purpose  expected  to  be 
only  of  a  temporary  nature,  or  in 
the  exercise  of  some  particular  pro- 
fession, office,  or  calling,  it  does 
change  the  domicile. —  Ennis  vs. 
Smith,  14  Howard,  400,  423.  The 
result  is  that  the  place  of  I'esidence 
\s  prima  facie  the  domicile,  unless 
there  be  some  motive  for  that  resi- 
dence not  inconsistent  with  a 
clearly-established  intention  to  re- 
tain a  permanent  residence  in  an- 
other place. — Ibid. 

'IV  Phillimore,  pp.  151-203;  I 
Halleck,  pp.  362-390 ;  Dicey,  pp.  73- 
86;  Boyd's  Wheaton,§  151  B,  151F; 
1  Twiss,  §  171. 

^  IV  Phillimore,  pp.  101-142;  ! 
Halleck,  pp.  368-371  ;   Dicey,  pp. 

137-147- 

MV  Phillimore,  pp.  101-122;  I 
Halleck,  pp.  369-371  ;  Dicey,  pp. 
137.  139- 143 1  Boyd's  Wheaton, 
§i5iE. 

•*  IV  Phillimore,  pp.  101-144;  I 
Halleck,  pp.  368-369;  Dicey,  pp. 
137-13^;  Story,  Conflict  of  Laws, 
§  47  ;  Wharton,  Ibid,  §§  49,  50. 


l6o  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

ishment,  is  not  changed  by  such  constrained  absence,  unless 
the  exile  or  banishment  be  in  the  execution  of  a  life-sentence.' 
As  consuls  do  not  enjoy  the  privilege  of  exterritoriality,  they 
become  domiciled,  for  most  purposes,  at  the  place  where  they 
reside  in  a  consular  capacity.  It  is  difficult,  however,  to  state 
a  rule  of  domicile  which  will  be  of  general  application  as  re- 
gards this  class  of  public  officers.  They  are  subject  to  the 
law  of  the  place  where  they  reside,  and  the  legality  of  their 
private  acts  is  determined  by  the  local  law.  If,  in  addition, 
they  are  subjects  of  the  state  in  which  they  are  resident  con- 
suls, they  differ  in  no  respect,  as  to  citizenship  or  domicile, 
from  other  citizens.  If,  on  the  contrary,  they  are  citizens  of 
the  state  which  they  represent  in  the  consular  capacity,  their 
residence  is  constrained,  and  their  domicile  is  unchanged.* 

{c.)  The  domicile  of  an  inferior  or  subordinate  person  is  that 
of  the  legal  superior.  Hence  the  domicile  of  the  wife  is  that 
of  the  husband ;  of  a  child,  that  of  the  father,  if  legitimate,  or 
of  the  mother,  if  illegitimate  ;  of  a  ward,  that  of  the  guardian ; 
of  a  slave,  that  of  the  master  ;  that  of  a  foundling  is  the  coun- 
try where  he  is  born  or  found.  A  change  in  the  domicile  of 
the  superior  produces  a  similar  change  in  the  domicile  of  the 
inferior  or  dependent  person.* 

(d.)  Save  in  the  case  of  the  reversion  to  the  domicile  of  origin, 
presently  to  be  explained,  domicile  once  acquired  is  presumed 
to  continue  until  it  is  shown  to  have  been  changed."  Where 
such  change  of  domicile  is  alleged  the  burden  of  proving  it 
rests  upon  the  person  making  the  allegation.^     To  constitute 


'IV  Philliinore,   pp.   131-134;   I         *   Ennis  vs.   Smith,  14  Howard, 
Halleck,  p.  371;    Dicey,   pp.    129-     400,  423  ;  Desmare  z'j-.  U.  S.  3  Otto, 
132;  Story,  Conflict  of  Laws,  §  47 
Field,  Int.  Code,  §  302. 

^  IV  Phillimore,  pp.  125-130 
Dicey,  pp.  138-139;  Ennis  vs. 
Smith,  14  Howard,  400;  Field,  Int 
Code,  §  302;  I  Twiss,  §  171. 

Dicey  on  Domicile,  pp.  5-7,  96 


605;  Mitchell  vs.  U.  S.  21  Wallace, 
352;  Somerville  vs.  Somerville,  5 
Vesey,  787  ;  Harvard  Col.  vs.  Gore, 
5  Pickering,  370  ;  Wharton,  Con- 
flict of  Laws,  §  55  ;  Boyd's  Wheaton, 
§§  151 B,  151E;  Dicey  on  Domicile, 
pp.  3,  8,  66. 
97,  104-107;    Boyd's   Wheaton,  §         *  Mitchell  vs.  U.  S.  21  Wallace, 


151C;     I    Halleck,    pp.    362-368; 


352;   Desmare   7/s.    U.    S.  3   Otto, 


IV  Phillimore,  pp.  61-100.  605 ;    Crookenden    vs.    Fuller,    i 


NATIONAL   CHARACTER  l6l 

the  new  domicile  two  things  are  indispensable  :  First,  residence 
in  the  new  locality  ;  and,  second,  the  intention  to  remain  there. 
The  change  cannot  be  made  except  facto  et  aniuio  ;  both  are 
alike  necessary.  Either  without  the  other  is  insufficient. 
Mere  absence  from  a  fixed  home,  however  long  continued,  can- 
not work  the  change  ;  there  must  be  the  animus  to  change  the 
prior  domicile  for  another.  Until  the  new  one  is  acquired,  the 
old  one  remains.' 

(^.)  Domicile  is  always  presumed.  When  once  the  essential 
conditions  of  residence  and  intention  have  been  fulfilled  by  an 
individual,  and  when  the  facts  of  such  residence  have  been  es- 
tablished by  competent  testimony,  a  court  is  bound  to  draw 
the  inference  that  the  intention  is  to  acquire  domicile.  This 
follows  from  the  rule  that  every  individual  is  presumed  to  have 
a  domicile.  If  his  residence  in  a  particular  place  has  been  such 
— in  point  of  character,  duration,  and  intention — as  to  conform 
to  the  conditions  already  stated,  that  place  becomes  his  domi- 
cile; if  he  is  a  mere  sojourner  in  a  foreign  country,  the  place 
of  his  birth  continues  to  be  his  domicile.^ 

(/".)  As  domicile  may  be  freely  chosen,  so  may  it  be  relin- 
quished, or  changed,  at  the  will  of  the  individual.  To  effect 
such  a  change  it  is  only  necessary  for  him  to  fulfil,  in  another 
place,  the  legal  conditions  of  domicile  as  to  residence  or  inten- 
tion. Domicile  follows  the  changed  conditions,  and  is  estab- 
lished as  a  fact  whenever  its  essential  conditions  are  perfected 
or  complied  with  in  the  place  of  residence. 

The  rules  of  domicile  are  of  importance  because  they  largely 
determine  the  status  of  an  individual  at  international  law. 
They  are  applied,  by  the  courts  of  all  civilized  states,  in  the 

Swabey  and  Tristram,  441 ;   Hodg-  Mitchell  vs.  U.  S.  21  Wallace,  350  ; 

son    vs.    De    Buchesne,    12    More,  the  Francis,   8    Crunch,  335  ;    the 

Privy  Council,  288.  Nereide,     9     Cranch,      388  ;      the 

'Mitchell  vs.  U.  S.  21   Wallace,  Dos    Herinanos,    2   Wheaton,   76; 

352;  Wharton,  Confl.   Laws,  §  55;  The  Frtcndschaft,  3  Wheaton,  14; 

Boyd's   Wheaton,  §    151D;    Dicey  Boyd's  Wheaton,  §  151  E;  IV  Philli- 

on  Domicile,  pp.  3,  4,  66,  74-91  ;  more,  pp.  145-150,  151-203;  I  Hal- 

I    Halleck,    pp.   362-368;    Boyd's  leek,  pp.  363-368,  374-383;  Dicey 

Wheaton,  §  151E.  on  Domicile,  pp.  8,  9,  86-96. 

°  Desmare  vs.  U.  S.  3  Otto,  605 ; 
II 


l62 


THE   ELEMENTS   OF   INTERNATIONAL    LAW 


decision  of  cases  arising  in  private  international  law  ;  and  they 
become  specially  important  in  time  of  war,  since  by  them  the 
character  of  an  individual  as  an  enemy  or  neutral  is  fixed  and 
determined." 

Kinds  of  Domicile.  Three  kinds  of  domicile  are  recosf- 
nized  by  law  : '' 

(i.)  Domicile  of  Origin.  This  coincides  with  citizenship  by 
birth  and  has  already  been  described/     If  another  domicile 


'  Domicile  in  the  law  of  prize 
becomes  an  important  considera- 
tion, because  every  person  is  to  be 
considered  in  such  proceedings  as 
belonging  to  that  country  where 
he  has  his  domicile,  whatever  may 
be  his  native  or  adopted  country. 
— The  William  Bagaley,  5  Wallace, 
377.  The  question  of  enemy  or 
friend  depends  upon  the  domicile. 
— The  Ann  Green,  i  Gallison,  274  ; 
the  Joseph,  Ibid.  545  ;  the  Francis, 
Ibid.  614  [618].  The  property  of  a 
commercial  house,  established  in 
the  enemy's  country,  is  subject  to 
seizure  and  condemnation  as  prize, 
though  some  of  the  partners  may 
have  a  neutral  domicile.  —  The 
Cheshire,  3  Wallace,  231.  Neutral 
friends,  or  even  citizens  who  re- 
main in  the  country  of  the  enemy, 
after  the  declaration  of  war,  have 
impressed  upon  them  so  much  the 
character  of  enemies  that  trading 
with  them  becomes  illegal,  and  all 
property  so  acquired  is  liable  to 
coifiscation. — The  William  Baga- 
ley, 5  Wallace,  377  [405].  Goods, 
the  property  of  merchants  actually 
domiciled  in  the  enemy's  country 
at  the  breaking  out  of  a  war,  are 
subject  to  capture  and  confiscation 
as  prize.— The  Mary  and  Susan,  i 
Wheaton.46. 

^  IV  Phillimore,  pp.  151-163;  I 
Halleck,  p.  362 ;  Dicey  on  Domi- 
cile, pp.  4,  5  ;  Boyd's  Wheaton,  § 
1 51c. 

^  IV  Phillimore,  pp.  25-31  ;  Ibid, 
pp.  58-60,  1 51-163;  I  Halleck,  pp. 


362,  374,  375  ;  Boyd's  Wheaton, 
§  151C.  A  naturalized  citizen  who, 
in  time  of  peace,  returns  to  his 
native  country  for  the  purpose  of 
trade,  but  with  the  intention  of  re- 
turning again  to  his  adopted  coun- 
try, continuing  in  the  former  a  year 
after  the  knowledge  of  the  exist- 
ence of  war  between  the  two  coun- 
tries for  the  purpose  of  winding  up 
a  complicated  business,  and  engag- 
ing in  no  new  commercial  trans- 
actions whatever  with  the  enemy, 
and  actually  returning  to  his  adopt- 
ed country  in  a  little  more  than  a 
year  after  his  first  knowledge  of  the 
war,  is  to  be  considered  as  having 
gained  a  domicile  in  his  native 
country,  and  his  goods,  captured 
after  the  war,  liable  to  condemna- 
tion.— The  Frances,  8  Cranch,  335. 
Goods,  the  property  of  merchants 
actually  domiciled  in  the  enemy's 
country  at  the  breaking  out  of  war, 
are  subject  to  capture  and  con- 
fiscation as  prize. — The  Maty  and 
Susan,  I  Wheaton,  46.  Where  a 
native  citizen  of  the  United  States 
emigrated  before  a  declaration  of 
war  to  a  neutral  country,  there  ac- 
quired a  domicile,  and  afterward 
returned  to  the  United  States  dur- 
ing the  war  and  re-acquired  his 
native  domicile,  he  became  a  re- 
dintegrated American  citizen  ;  and 
could  not  a.{ie.r\\s.rd,Jlagratitebello, 
acquire  a  neutral  domicile  by  again 
emigrating  to  his  adopted  country. 
—  The  Dos  Hermanos,  2  Wheaton, 
76.     The  native  character  does  not 


NATIONAL   CHARACTER  163 

be  acquired,  and  subsequently  lost,  the  domicile  of  origin  is 
said  to  revert.' 

(2.)  Domicile  of  Choice.  This  is  the  civil  status  that  is  ac- 
quired by  an  individual  as  a  consequence  of  residence  in  a 
place,  other  than  that  of  his  birth,  with  the  intention  of  re- 
maining.'' 

(3.)  Domicile  by  Operation  of  Law.  This  status  results  when 
a  dependent  person  passes  under  the  control  of  a  legal  supe- 
rior. Such  is  the  case  with  the  domicile  of  a  woman  at  mar- 
riage, or  of  a  child  at  adoption,  or  when  an  illegitimate  child  is 
legitimated  in  accordance  with  the  law  of  the  place  where  such 
legitimation  occurs.^  The  domicile  of  dependent  persons,  thus 
created  by  operation  of  law,  may  change  when  the  condition 
of  dependency  is  terminated  ;  the  domicile  of  the  wife,  for 
example,  may  be  changed  after  the  death  of  her  husband ;  as 
may  that  of  an  infant  upon  attaining  his  majority  ;  or  that  of 
a  person  under  constraint,  when  the  legal  constraint  is  removed, 
as  when  a  person  in  the  military  or  naval  service  is  discharged 
and  thereby  resumes  his  freedom  of  choice  in  respect  to  move- 
ment, residence,  and  occupation. 

Passports.  It  has  been  seen  that  the  citizenship  of  an  in- 
dividual, when  drawn  in  question  in  a  foreign  country,  is 
proved  by  documentary  evidence  of  allegiance.  This  evidence 
is  contained  in  passports,  and  ^passport  or  certificate  of  origin 
may  be  defined  as  a  written  instrument,  issued  by  the  author- 
ity of  the  state  for  the  identification  and  protection  of  its 
citizens  when  travelling  abroad,  and  containing:  first,  a  certifi- 


revert  by  the  mere  return  to  his  continues.  —  The    Friendschaft,   3 

native  country  of  a  merchant  who  Wheaton,  14. 

is  domiciled  in  a  neutral  country  '  I  Halleck,  pp.  374,  475  ;  Dicey, 

at  the  time  of  capture;  who  after-  pp.  86-96;  IV  Phillimore,  pp.  54-57; 

ward  leaves  his  commercial  estab-  Boyd's  Wheaton,  §  151C. 

lishment  in  the  neutral  country  to  °  IV  Phillimore,  pp.  145-226  ;    I 

be  conducted    by  his  clerks  in  his  Halleck,  pp.  362-367;    Dicey,   pp. 

al;sence  ;  who  visits  his  native  coun-  73-86;  Boyd's  Wheaton,  §  151D. 

try  merely  on  mercantile  business,  ^  Dicey,    pp.    96-109;    IV  Philli- 

and  intends  to  return  to  his  adopt-  more,  pp.  61-100;    I   Halleck,  pp. 

ed  country.     Under  these  circum-  368-371. 
stances  the  neutral  domicile  still 


l64  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

cate  of  the  citizenship  of  the  bearer  or  holder ;  and,  second, 
formal  permission  for  such  citizen  to  leave  the  state  of  his  al- 
legiance. They  are  issued  under  such  regulations  and  restric- 
tions as  the  state  may  see  fit  to  impose,  and  bear,  as  a  rule, 
the  seal  of  the  state  under  whose  authority  they  have  been 
issued.  When  lawfully  issued  they  constitute  evidence  of 
identity  and  nationality  when  a  question  of  citizenship  arises 
in  a  country  other  than  that  of  the  individual  who  produces 
them.  They  are  obtained  upon  application  duly  made  in  be- 
half of  the  individual  desiring  them,  such  application  being 
supported  by  evidence  of  the  birth  or  naturalization  of  the 
applicant.' 

Issue  of  Passports  in  the  United  States.  In  the  United 
States  passports  are  issued  by  the  State  Department,  or  by 
such  diplomatic  and  consular  officers  as  the  President  may 
designate,  and  under  such  rules  as  he  may  prescribe.  The 
officers  who  are  entitled,  by  law,  to  issue  them  are  vested 
with  discretion  in  the  matter,  and  may  decline  to  furnish 
them  to  persons  as  to  whose  right  to  them  there  is  any 
doubt.' 

The  term  passport,  or  sea-letter,  is  also  applied  to  a  similar 
instrument  issued  in  behalf  of  the  owner  of  a  vessel  and  cer- 
tifying to  his  nationality  as  well  as  to  the  registry  of  the 
ship.  The  term  "sea-letter"  relates  rather  to  the  cargo; 
the  term  "  passport,"  when  used  in  this  connection,  having 
to  do  with  the  nationality  of  the  vessel  and  the  citizenship 
of  its  owner.^ 


'  Kliiber,  §  212;  I  De  Martens,  §  1893,  pp.  25, 593,603,  530-536;  1895, 

84;    II  Ibid.  §  219;    Bluntschli,  §  part  i.  pp.  8-20,  514-523. 

251  ;  II  Dig.  Int.  Law,  §§  191-195.  ^  Bluntschli,  §  326;  III  Dig.  Int. 

"^  For  the  statutes  regulating  the  Law,  §§  409,  410.  The  term  pass- 
issue  of  passports  to  citizens  of  the  port  is  sometimes  applied  to  the 
United  States,  see  §§  4075-4077  safe  conduct,  issued  by  a  bellig- 
Revised  Statutes,  and  paragraphs  erent  in  time  of  war,  as  a  protec- 
146-167  Consular  Regulations  of  tion  to  a  person  travelling  in  the 
1896.  See  also  Foreign  Relations  theatre  of  military  operations, 
of  the  United  States,  1888,  p.  1664; 


NATIONAL    CHARACTER  l6$ 

References.  The  international  view  of  citizenship  has  changed  so 
radically  in  recent  times  as  to  render  obsolete  most  of  the  literature, 
upon  the  subject  of  national  character,  which  antedates  the  present 
century.  For  an  account  of  the  origin  and  development  of  the  principle 
of  popular  sovereignty,  to  which  the  changed  view  of  allegiance  is  largely 
due,  see  Maine,  "  Popular  Government";  Cooley,  "Constitutional  Law," 
pp.  25,  26  ;  Amos,  "  Science  of  Law,"  pp.  13-27.  For  the  old  view  of  alle- 
giance, see  Grotius,  bk.  i.  chap.  i.  par.  v.  note,  28-32 ;  chap.  iii.  par.  ix. ; 
bk.  ii.  chap.  iii.  par.  viii. ;  and  Vattel,  liv.  i.  chap.  xix.  For  the  modern 
view,  see  I  Halleck,  chap.  xii. ;  Hefifter,  chap.  i.  §  ii.  Considerable  in- 
terest in  the  subject  of  allegiance  and  national  character  was  manifested 
by  many  nations  between  the  years  i860  and  1880.  During  this  pe- 
riod a  number  of  naturalization  treaties  were  negotiated.  For  informa- 
tion upon  the  subject  of  Naturalization,  Expatriation,  and  Domicile,  the 
student  is  referred  to  existing  naturalization  treaties,  to  reports  of  com- 
missions upon  those  subjects,  and  to  the  new  works,  or  new  editions  of 
old  works,  which  have  appeared  since  1870.  In  this  connection  see 
Hall,  §§  66-74,  appendix  iii.;  I  Halleck,  chap,  xii.;  Heffter,  chaps,  i.  ii.; 
see  also  the  "Report  of  the  English  Naturalization  Commission  of 
1868  "("  Diplomatic  Correspondence  of  the  United  States,  1873,"  part  ii. 
pp.  1232- 1424),  and  the  naturalization  treaties  of  the  United  States; 
"Treaties  and  Conventions  of  the  United  States,  1776 -1870,"  vol.  i.; 
"  Revue  de  Droit  International,"  pp.  102-112;  ii.  Ibid.  pp.  107-120;  xii. 
Ibid.  pp.  312-316;  XX.  Ibid.  pp.  498,  607;  xxx.  Ibid.  pp.  413-444;  For- 
eign Relations  of  the  United  States,  1877,  pp.  246-252;  1882,  Ibid.  pp. 
344-346;  1885,  Ibid.  p.  392;  1886,  Ibid.  p.  315;  1887,  Ibid.  pp.  1073,  1074; 
1888,  Ibid.  p.  1648;  1893,  Ibid.  pp.  569,  572,  699,  706,  715.  The  rules  of 
domicile  are  very  fully  discussed  in  Wharton  and  Story  ;  I  Halleck,  chap, 
xii.;  Heffter,  chap.  i.  §  iii.;  Ill  Phillimore,  chaps,  iii.-xiii. ;  Hall,  pp. 
220-241  and  572;  Dicey  on  Domicile;  Boyd's  Wheaton,  pp.  118-212; 
Bar,  "International  Law,"  §§  29-32,  39;  Lawrence,  Int.  Law,  §§  114- 
118;  II  Dig.  Int.  Law,  §§  171-207;  Pomeroy,  §  171  ;  Walker,  Int.  Law, 
pp.  204-221. 


CHAPTER  V 

EXTRADITION 

The  Right  of  Criminal  Jurisdiction.  The  right  of  a  state 
to  try  and  punish  offenders  for  crimes  committed  within  its 
territorial  Hmits  is  indisputable,  being  an  essential  incident  of 
its  sovereignty.  It  matters  not  by  whom  such  offences  have 
been  committed,  for  all  persons,  whether  citizens  or  aliens, 
are,  in  this  regard,  subject  to  the  law  of  the  state  in  which 
they  may  be  at  any  time ;  the  presumption  being  that,  by 
entering  the  territory  of  a  state,  they  voluntarily  submit  them- 
selves to  the  operation  of  its  laws.  They  are  also  presumed 
to  know  those  laws,  and  a  plea  of  ignorance  as  to  their  re- 
quirements will  not  shield  them  from  the  consequences  of 
disobedience.  Nor  can  an  individual  claim  the  protection 
of  his  own  government  in  any  course  of  action  which  is 
opposed  to  the  law  of  the  state  in  which  he  is  sojourning. 
He  can  demand  such  protection,  as  of  right,  only  when  his 
behavior  has  been  correct,  and  his  conduct  in  all  respects 
lawful. 

Duty  of  a  State  as  to  Crimes  Committed  Abroad.  The 
duty  of  a  state  to  assist  other  states  in  the  execution  of  their 
criminal  laws  is  less  generally  conceded.  Some  writers  have 
maintained  that  it  is  incumbent  upon  every  state  to  refuse 
asylum  to,  and  upon  proper  application  to  deliver  up,  all  per- 
sons charged  with  crimes  of  excessive  atrocity,  or  which  affect 
the  peace  and  security  of  society.'     The  contrary  view,  that 

■  Chancellor  Kent  advocates  this  est  pruiciples  of  justice. — I  Kent, 

view  and,  after  citing  authorities  in  Holmes  ed.   p.  J37.     The  contrary 

its  support,  gives  it  as  his  opinion  view,  however,  that  extradition  can 

tliat   it  is  based   upon   the   plain-  only  be  had  in  pursuance  of  treaty 


EXTRADITION 


167 


extradition  is  a  matter  of  comity,  or  treaty  stipulation,  has 
been  as  ably  maintained,  and  is  now  more  generally  accepted 
by  text  writers  of  authority,'  and  sanctioned  by  the  usage  of 
nations. 

Surrender  by  Comity  and  Treaty.  The  practice  of  re- 
fusing asylum  to  foreign  criminals,  and  of  surrendering  them 
through  comity,  prevails  to  a  considerable  extent  on  the  con- 
tinent of  Europe.  In  England  and  the  United  States  the  al- 
most invariable  practice  has  been  to  surrender  criminals  only 
in  accordance  with  treaty  stipulations.     While  no  positive  rule 


stipulations  is  the  one  now  general- 
ly accepted. — I  Halleck,  chap.  vii. 
§  28  ;  I  Twiss,  §  237.  There  is  noth- 
ing in  the  law  of  nations,  as  ex- 
plained by  the  usage  and  practice 
of  the  most  respectable  among 
them,  which  imposes  on  us  any 
obligation  to  deliver  up  fugitives 
from  foreign  justice. — I  Opinions  of 
Attorney-General,  p.  521.  The  in- 
ternational extradition  of  fugitives 
from  justice  is  a  duty  of  comity, 
not  of  strict  right. — Wing's  case,  VI 
Opinions  of  Attorney- General,  p. 
85,  Gushing  (1853).  It  is  the  settled 
policy  of  the  United  States  not  to 
make  such  extradition,  except  in 
virtue  of  express  stipulations  to 
that  effect.  Hence  the  United 
States  ought  not  to  ask  for  extra- 
dition in  any  cases  as  an  act  of 
mere  comity. — Ibid.  According  to 
the  practice  of  the  Executive  De- 
partments, the  President  is  not 
deemed  to  be  authorized  to  order 
the  delivery  of  fugitives  from  jus- 
tice in  the  absence  of  any  express 
provision  by  treaty. — III  Opinions 
of  Attorney-General,  p.  661.  A  for- 
eign government  has  no  right,  by 
the  law  of  nations,  to  demand  of 
the  Government  of  the  United 
States  a  surrender  of  a  citizen  or 
subject  of  such  foreign  country  who 
has  committed  a  crime  in  his  own 
country,  and  is  afterwards  found 
withiri  the  liniits  of  the  United 


States.  It  is  a  right  which  has  no 
existence  without,  and  can  only  be 
secured  by,  a  treaty  stipulation. — 
Case  of  Jose  Ferreira  dos  Santos, 
II  Brockenbrough,  493. 

'  Hall,  pp.  59.  60 ;  Bar,  p.  17,  and 
pp.  623-625,  685-686,  702-737. 
Case  of  Carl  Vogt.  —  The  extradi- 
tion of  Carl  Vogt,  who  was  charged 
with  burglary,  robbery,  and  murder, 
committed  in  Belgium,  was  asked 
of  the  United  States  by  the  Bel- 
gian Government  in  1873;  there 
being  no  extradition  treaty  with 
that  power,  his  surrender  was  re- 
quested on  the  ground  of  comity. 
After  prolonged  consideration  of 
the  request  the  Belgian  minister 
was  advised  that  Voart's  surrender, 
as  an  act  of  comity,  was  mipossi- 
ble  on  the  ground  that  "  the  au- 
thority of  the  Executive  to  abridge 
personal  liberty  within  the  jurisdic- 
tion of  the  United  States,  and  to 
surrender  a  fugitive  from  justice  in 
order  that  he  may  be  taken  away 
from  their  jurisdiction,  is  derived 
from  statutes  of  Congress,  which 
confer  that  power  only  in  cases 
where  the  United  States  are  bound 
by  treaty  to  surrender  such  fugi- 
tives, and  have  a  reciprocal  right  to 
claim  similar  surrender  from  an- 
other power." — United  States  For- 
eign Relations,  1873,  P^i't  '•  P-  81  ; 
see  also  XI V  Opinions  of  Attorney- 
General,  p.  281, 


l68  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

can  be  laid  down  upon  this  subject,  it  may,  perhaps,  be  said 
that  extradition  by  comity  is  more  common  among  states  hav- 
ing strongly  centralized  governments,  than  in  those  in  which 
representative  institutions  are  so  firmly  established  as  to  con- 
stitute an  efficient  check  upon  the  executive  branch  of  the 
government,  and  where  restrictions  upon  personal  liberty  are 
not  readily  tolerated.' 

Difference  of  Vievi^  as  to  Criminal  Jurisdiction.  The 
views  as  to  criminal  jurisdiction  which  prevail  in  different 
states  vary  considerably,  and  depend,  in  any  particular  state, 
partly  upon  its  constitution  and  partly  upon  the  source  from 
which  it  derives  its  system  of  law.  In  England  and  the  Unit- 
ed States,  where  the  common  law  prevails,  criminal  jurisdic- 
tion is  regarded  as  strictly  territorial.  Crimes  are  tried  and 
punished  at  the  place  of  their  commission,  and  criminal  courts 
have  no  jurisdiction  over  offences  committed  beyond,  or  out- 
side of,  certain  territorial  limits,  which  are  exactly  defined  in 
the  laws  which  create  them.  These  states,  therefore,  are  will- 
ing to  surrender  criminals  who  have  taken  refuge  within  their 
borders,  even  when  they  are  subjects  of  the  surrendering  state. 
They  object  to  such  surrender  only  when  the  offence  is  of  a 
political  character,  when  the  definitions  of  crime  in  the  de- 
manding state  are  much  stricter  than  their  own,  or  when  the 
forms  of  trial  are  such  as  to  be  regarded  as  unjust,  or  unfair, 
when  judged  by  their  own  standards  of  criminal  procedure. 
Among  the  Continental  states  of  Europe,  and  in  those  of 
Central  and  South  America,  whose  systems  of  jurisprudence 
are  largely  based  upon  the  Roman  law,  a  different  view  of 
jurisdiction  prevails.  The  law  of  the  state  is  presumed  to 
follow  a  subject  wherever  he  may  go,  and  to  control  and  regu- 
late his  actions  and  conduct  to  the  same  extent  abroad  as  at 
home.     Their  criminal  courts,  therefore,  have  power  in   cer- 

'  See  note  i  to  page  167.     Spain  chargedwith  forgery  and  embezzle- 

surrendered    one   Tweed,   a    fugi-  ment,  and  was  surrendered  on  con- 

tive    from    justice     in    the    State  dition    that   his  case   was  not   to 

of  New  York,  in  1876,  and  Japan  constitute  a  precedent.     See  also 

surrendered    one    Calvin    Pratt,  Foreign  Relations   of  the  United 

throughcomity,  in  1885.    Pratt  was  States,  1878,  p.  560. 


EXTRADITION 


169 


tain  cases  to  try  the  case  if  the  person  of  the  offender  is 
subject  to  their  jurisdiction,  and  so  can  punish  a  subject 
after  his  return  home,  for  a  crime  committed  abroad.  These 
states,  therefore,  while  they  will  surrender  foreign  criminals 
who  have  escaped  to  their  territory,  hesitate,  and  often  de- 
cline, to  surrender  their  own  subjects  for  crimes  committed 
abroad.' 


'  Lawrence,  Int.  Law,  §§  132,  133  ; 
I  Twiss,  §§  240-242;  Walker,  Sci. 
Int.  Law,  pp.  232-238;  Kliiber,  § 
66  ;  Heffter,  §  63.  "  Three  causes 
have  operated,  during  the  present 
century,  to  diminish  extra-terri- 
torial pretensions  in  criminal  mat- 
ters: (i)  The  growth  of  the  idea  of 
nationality  and  of  equality;  (2)  the 
development  and  extension  of  com- 
mercial intercourse;  (3)  the  more 
general  recognition  and  perform- 
ance, by  independent  states,  of 
their  rights  and  duties  under  inter- 
national law.  The  first  cause  has 
operated  to  produce  a  clearer  ap- 
prehension of  the  objects  of  na- 
tional existence,  and  of  the  bounds 
of  national  authority ;  the  second 
has  rendered  more  apparent  the  ne- 
cessity of  personal  immunity  from 
vexatious  and  unjust  prosecutions 
under  foreign  and  unknown  laws ; 
the  third  has  made  governments 
more  ready  to  abandon  assump- 
tions of  authority  which  infringe 
the  rights  of  other  sovereign  pow- 
ers. The  infliction  of  punishment 
involves  an  exercise  of  power,  and 
power  implies  subjection.  This 
principle  holds  good  in  public  as 
well  as  in  private  affairs.  The  pun- 
ishment by  one  state  of  the  citizen 
of  another  state  for  an  act  for  which 
he  is  solely  answerable  to  the  laws 
of  the  latter,  or  even  for  an  act  for 
which  he  was  not  answerable  to 
the  laws  of  the  former,  is  a  public 
wrong.  For  a  nation  to  hold  its 
penal  laws  to  be  binding  on  all  per- 
sons within  the  territory  of  another 


state,  is  to  assert  a  right  of  sover- 
eignty over  the  latter,  and  to  im- 
pair its  independence.  A  state 
may,  if  it  see  fit,  tie  its  criminal  law 
about  the  neck  of  its  citizen,  and 
hold  him  answerable  for  its  vio- 
lation everywhere.  But  even  this 
power  of  control  has  its  limitations. 
For  the  citizen  so  bound  is,  never- 
theless, not  exempt  from  obedience 
to  the  law  of  the  place  where  he 
may  be,  and  it  would  be  vip  defence 
to  a  charge  of  having  violated  it  to 
say  that  the  act  complained  of  was 
required  by  the  penal  law  of  his 
own  country.  The  local  allegiance 
would  be  paramount ;  his  double 
allegiance  would  be  his  misfortune, 
for  relief  from  which  he  could  ap- 
peal to  the  mercies  of  his  own  gov- 
ernment alone.  When  a  man  in 
his  own  country  violates  its  laws, 
he  is  answerable,  for  his  miscon- 
duct, to  those  laws  alone;  and  it  is 
his  right  to  be  tried  under  them, 
and  in  accordance  with  the  meth- 
ods of  procedure  which  they  pre- 
scribe. To  say  that  he  may  be  an- 
swerable to  another  law,  because 
the  person  he  attacks  is  a  foreigner, 
would,  in  principle,  subject  him  in 
his  own  country  to  a  dual,  but  to 
an  indefinite,  responsibility.  Such 
a  pretension  is  an  assertion,  not 
only  of  an  impermm  in  imperio,  but 
of  i)iipcria  in  inipcrio.  It  would 
expose  citizens  and  all  other  per- 
sons in  the  United  States  to  liabil- 
ity to  as  many  penal  systems  as 
there  happened  to  be  nationalities 
represented  in  the  foreign  popula- 


170  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

The  Cutting  Case.  Although  this  case  is,  in  strictness,  an  ex- 
ample of  the  interposition  of  a  state  to  protect  its  citizens 
abroad,  it  illustrates,  at  the  same  time,  an  important  difference 
which  now  exists,  as  to  the  right  of  a  state  to  punish  acts,  in 
violation  of  its  laws,  committed  not  only  beyond  its  boundaries, 
but  within  the  territorial  jurisdiction  of  another  state.  Cutting 
was  an  American  citizen,  and  a  resident  of  El  Paso,  in  the  State 
of  Texas,  where  he  was  engaged  in  the  publication  of  the  Ceii- 
tinela,  a  weekly  newspaper.  In  June,  1886,  Cutting  published 
an  article  defamatory  of  one  Medina,  a  Mexican  citizen.  He 
afterward  crossed  the  Rio  Grande  into  Mexican  territory,  where 
he  was  arrested  on  a  charge  of  criminal  libel,  in  violation  of 
paragraph  186  of  the  Mexican  Penal  Code,  a  statute  which, 
under  certain  conditions,  confers  jurisdiction  upon  the  crim- 
inal courts  of  that  state  to  try  offences  against  citizens  of  Mex- 
ico committed  by  foreigners  in  foreign  territory.  Mr.  Cutting 
was  brotight  before  a  local  criminal  court,  and  required  to  sign 
a  "  reconciliacion,"  an  instrument  peculiar  to  Mexican  juris- 
prudence, which  operated  as  a  settlement  between  the  parties, 
in  consideration  of  which  the  aggrieved  party  abandoned  fur- 
ther criminal  proceedings.  Cutting  then  returned  to  the  United 
States,  where  he  published  a  card  in  the  Centinela,  in  which  he 
reiterated  his  former  charges,  and  added  others,  in  which  he 
characterized  Medina's  action  as  contemptible  and  cowardly. 
Returning  to  Mexican  territory  on  June  23d,  he  was  again  ar- 
rested, presumably  on  the  same  charge.  His  trial,  which  re- 
sulted in  a  conviction,  was  completed  on  August  7th,  and  he 
was  sentenced  to  imprisonment  at  hard  labor  for  one  year,  in 
addition  to  which  a  fine  of  $600  was  imposed,  and,  in  default 
of  payment,  his  confinement  at  hard  labor  was  to  continue  for 
a  further  period  of  one  hundred  days.  The  case  was  carried,  by 
way  of  appeal,  to  the  Supreme  Court  of  the  State  of  Chihuahua, 


tion.     Every  fresh  accession  to  that  statement  of  such  a  proposition  is 

population  would  extend  the  oper-  a  sufficient  refutation  of  it."— For- 

ation,  and  potentially  increase  the  eign  Relationsof  the  United  States, 

variety  of  foreign  penal  systems  in  1887,  pp.  839,  840. 
force  in  this  country.     The   mere 


EXTRADITION  I7I 

where  the  sentence  of  the  lower  court  was  affirmed,  but  the 
prisoner  was  released  on  the  ground  that  the  plaintiff  had 
withdrawn  from  the  prosecution  of  the  suit. 

As  the  act  of  publication  had  taken  place  within  the  terri- 
torial jurisdiction  of  the  United  States,  the  American  minister 
to  Mexico  was  instructed,  on  July  19th,  to  demand  the  instant 
release  of  Mr,  Cutting,  upon  the  ground  that  the  offence  had 
been  committed  in  a  place  bej-ond  the  jurisdiction  of  Mexico, 
and  the  assumption  of  the  Mexican  tribunal  to  punish  a  citi- 
zen of  the  United  States  for  an  offence  against  the  law  of 
Mexico,  wholly  committed  and  consummated  in  his  own  coun- 
try, was  an  invasion  of  the  sovereignty  and  independence  of 
the  United  States.  The  Mexican  Government  contended  that 
the  act  of  its  tribunal  was  justified  by  the  rules  of  interna- 
tional law,  and  that  the  question  of  determining  whether  the 
case  was  triable  in  Mexico,  or  not,  was  one  which  was  to  be 
decided  by  the  courts  of  that  state.  The  Mexican  minister 
does  not  seem  to  have  relied,  chiefly,  if  at  all,  upon  the  ground 
that  the  publication  of  the  libel  in  Mexico  would  have  operated 
to  confer  jurisdiction  upon  its  courts  to  try  the  case,  but  rested 
his  argument  upon  the  grounds  above  stated.  The  correct- 
ness of  the  views  advanced  by  the  Mexican  Foreign  Office  was 
denied  by  the  United  States,  and  its  demand  was  persisted  in. 
The  case  terminated  with  the  release  of  Mr.  Cutting  under  the 
decision  rendered  by  the  court  of  appeals. 

The  affair  illustrates  the  difference  of  view,  in  respect  to  the 
power  to  punish  crime,  which  exists  between  states  whose  legal 
systems  are  based  upon  the  Roman  law,  and  those  whose  juris- 
prudence is  derived  from  the  common  law ;  the  view  of  the 
former  being  that  a  state  has  power  to  punish  the  offence, 
wherever  committed,  whenever  the  offender  is  found  within  its 
jurisdiction;  the  latter,  on  the  other  hand,  regard  jurisdiction 
to  punish  crime  as  strictly  territorial  in  character,  and  that  an 
offence  can  only  be  lawfully  tried  and  punished  in  the  terri- 
torial jurisdiction  in  which  it  was  committed.  The  common 
law  view  of  the  matter  is  supported  by  the  principles  of  inter- 
national law,  as  those  principles  are  now  generally  accepted 


172 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


and  understood.  If  a  state  is  sovereign  and  independent 
within  its  territorial  limits — a  doctrine  that  lies  at  the  basis  of 
the  law  of  nations — the  right  to  try  and  punish  crimes,  com- 
mitted within  its  territory,  is  an  essential  attribute  of  sov- 
ereignty, and  the  attempt  to  try  such  offences  in  an  alien  ju- 
risdiction is  an  invasion  of  such  sovereignty  to  the  extent  of 
the  jurisdiction  exercised  in  the  particular  case.* 

As  a  result  of  increased  international  intercourse,  and  with 
the  rapid  extension  of  commerce  which  has  taken  place  in  re- 
cent times,  each  group  of  nations  has  found  it  necessary  to 
modify,  to  some  extent,  its  peculiar  view  of  criminal  jurisdic- 
tion. All  modern  nations  punish  the  crime  of  piracy,  wherever 
committed ;  and  most  of  them  punish  their  own  subjects  for 
engaging  in  the  slave-trade.  England  and  the  United  States 
punish  many  crimes  committed  by  their  subjects  beyond  their 
territorial  jurisdiction,  especially  on  the  high  seas.  On  the 
other  hand,  many  Continental  states  find  it  no  longer  necessary 
to  assert  so  extensive  a  jurisdiction,  in  criminal  matters,  as  is 
warranted  by  their  legal  systems.  Jurisdiction  over  many  of- 
fences of  small  importance,  amounting  to  misdemeanors  at 
common  law,  is  now  generally  abandoned  by  them,  and  crimes 
of  a  more  serious  character  are  triable  only  on  complaint  of 
the  injured  party,  when  both  have  come  within  their  terri- 
torial jurisdiction.  Most  states,  however,  punish  crimes  against 
the  state,  such  as  treason,  counterfeiting,  etc.,  wherever  com- 
mitted, when  the  person  of  the  criminal  is  found  within  their 
jurisdiction.' 

'  For  the  correspondence  in  this  '^The  following  summary  of  the 
case,  see  Foreign  Relations  of  the  practice  of  the  principal  states  of 
United  States,  1886,  pp.  691-707  ;  the  world,  in  respect  to  the  punish- 
1887,  Ibid.  pp.  751-867;  1888,  Ibid,  ment  of  oflfences  committed  abroad, 
pp.  1113, 1 189, 1 199,  1201.  Foranex-  is  extracted  from  the  report  of  As- 
haustive  report  on  the  questions  of  sistant  Secretary  Moore  in  the  Cut- 
international  law  involved,  see  the  ting  case: 

Report  on  Extraterritorial  Crime,  "  Foreigners  are  punished  who, 

by  J.  Bassett  Moore,  Assistant  Sec-  outside  of  the  national  territory  and 

retary  of  State,  For.  Rel.  of  the  U.  jurisdiction,  commit  offences: 

S.  1887,  pp.  757-867;  see  also  vol.  "  (i)  Against   the  safety   of  the 

XX.  Revue  de  Droit  International,  jAr/c  (a)  By  France,  Germany,  Aus- 

pp.  559-577;  xxii.  Ibid.  pp.  234-250.  tria,  Hungary,  Italy,  Lux,em,bourg, 


EXTRADITION 


173 


Extradition.  The  term  extradition  is  applied  to  the  legal 
process  by  which  one  sovereign  state,  in  compliance  with  a 
formal  demand,  surrenders  to  another  state,  for  trial,  the  per- 
son of  a  criminal  who  has  sought  refuge  within  its  territory,' 


the  Netherlands,  Norway,  Russia, 
Sweden,  Greece,  Brazil,  Spain, 
Switzerland  ;  (b)  not  punished  by 
Denmark,  Great  Britain,  Portugal. 

"  (2)  Cojtntcrft'iting  seals  of  the 
state,  7iational  moneys  having  cir- 
culation, national  papers  or  batik 
bills  authorized  by  law  ;  (a)  Pun- 
ished by  France,  Germany,  Austria, 
Belgium,  Hungary,  Italy,  Lux- 
embourg, the  Netherlands,  Nor- 
way, Sweden,  Greece,  Brazil,  Spain, 
Switzerland  ;  (b)  Not  punished  by 
Denmark,  Great  Britain,  Portu- 
gal. 

"(3)  Other  offences:  (a)  General 
jurisdiction  of  offences  committed 
abroad,  by  foreigners  against  sub- 
jects, is  claimed  by  Greece  and 
Russia ;  (b)  Such  offences  are  pun- 
ished by  Sweden  and  Norway,  if 
the  King  orders  the  prosecution ; 
(c)  Crimes,  but  notdelits,  committed 
by  foreigners  in  another  state  are 
punished  by  Austria,  provided  that 
(except  in  the  case  of  crimes,  speci- 
fied under  i  and  2),  an  offer  of  sur- 
render of  the  accused  person  has 
first  been  made  to  the  state  in  which 
the  crime  has  been  committed,  and 
has  been  refused  by  it ;  (d)  criminal 
offences  committed  abroad  by  for- 
'eigners  are  punished  by  Hungary, 
if  the  minister  of  justice  orders  the 
prosecution,  provided  the  act  is 
punishable  at  the  place  of  commis- 
sion, that  it  has  not  ceased  to  be 
punishable  there,  and  that  the  com- 
petent authority  does  not  under- 
take to  punish  it ;  (e)  criminal  of- 
fences, committed  by  foreigners, 
against  Italians  in  another  state, 
are  punished  by  Italy,  but  only 
when  (except  in  the  cases  under  i 
and  2)  an  offer  of  surrender  of  the 
person  accused  has  been  made  to 


the  state  in  which  the  crime  was 
committed,  and  has  been  refused  by 
it,  unless  the  crime  was  committed 
within  three  miles  of  the  frontier, 
or  stolen  property  has  been  brought 
into  the  kingdom;  (f)  non-bailable 
offences,  committed  abroad  by  for- 
eigners, are  punished  by  Brazil,  if 
the  prosecution  is  authorized  by 
the  government,  and  the  laws  of  the 
criminal's  country  punish  foreigners 
in  like  cases;  (g)  criminal  offences, 
committed  outside  of  the  state,  by 
foreigners  against  citizens  or  sub- 
jects, are  not  punished,  under  any 
conditions,  by  France,  Germany, 
Belgium,  Denmark,  Great  Britain, 
Luxembourg,  the  Netherlands,  Por- 
tugal, Spain,  or  Switzerland."^ 

'  I  Moore  on  Extradition,  §  i ; 
Spear,  Ibid.  pp.  70,  71;  Heffter,  § 
63;  Kliiber,  §  66;  Bluntschli.  §§ 
394-401 ;  Lawrence,  Int.  Law,  §  132; 
Pomeroy,  §  1 98 ;  Vattel,  liv.  ii.  chap. 
vi.§§  75-77;  Dana's  Wheaton,§  181, 
note  73 ;  Walker,  Science  of  Int. 
Law,  pp.  232-238. 

^  Foreign  Relations  of  the  United 
States,  1887,  pp.  757-867.  In  the  case 
of  the  United  States  vs.  Arjona,  decided 
by  tlie  Supreme  Court  in  1886,  it  was 
held  that  the  counterfeiting  of  foreign 
securities,  whether  national  or  corpo- 
rate, which  have  been  put  out  under  the 
sanction  of  public  authority  at  home, 
especially  the  counterfeiting  of  bank 
notes  and  bank  bills,  is  an  offence  against 
the  law  of  nations;  and  that,  conse- 
quently, the  Congress  of  the  United 
States  has  authority,,  under  its  constitu- 
tional power  to  provide  for  the  punish- 
ment of  offences  against  the  laws  of  na- 
tions, to  enact  laws  to  punish  the  for- 
eign counterfeiting  of  foreign  securities 
in'the  United  States. — United  States  vs. 
Arjona,  120  U.  S.  479. 


174  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Methods  of  Extradition.  Extradition  may  be  effected  in 
three  ways:  ist.  By  treaty;  2d.  In  accordance  with  authority 
conferred  by  municipal  law  ;  3d.  By  comity. 

Few  extradition  treaties  were  in  existence  at  the  beginning 
of  this  century,  and  most  of  those  now  in  force  have  been  ne- 
gotiated within  the  last  thirty  years.  Their  number  is  steadi- 
ly increasing,  and  the  present  tendency  is  to  regulate  the 
surrendry  of  criminals  exclusively  in  accordance  with  their 
stipulations.  These  treaties  are  usually  construed  with  great 
strictness;  the  list  of  criminal  offences  contained  in  the  body 
of  the  treaty  is  rigidly  adhered  to,  and  requests  for  the  extra- 
dition of  persons  charged  with  crimes  not  mentioned  in  such 
lists  are  almost  invariably  refused.* 

Extraditable  Ofifences.  The  crimes  for  which  extradition 
may  be  requested  are  those  as  to  which  there  is  a  concurrence 
of  opinion  among  all  civilized  states  as  to  definition  and  pun- 
ishment, and,  also,  as  to  the  kind  and  amount  of  evidence  nec- 
essary to  secure  a  conviction.  Wherever  that  course  seems 
necessary,  they  are  accurately  defined  in  treaties.  Those  com- 
mon to  most  extradition  treaties  are,  arson,  assaults  of  an 
aggravated  character,  burglary,  counterfeiting,  embezzlem&nt 
(either  of  public  money,  by  public  officers,  or  by  persons  hired 
or  salaried),  forgery,  larceny,  murder,  piracy,  rape,  and  robbery. 

Request  for  Extradition,  by  whom  Made.  In  general  the 
request  for  extradition,  and  the  consequent  surrender,  are  acts 
of  high  sovereign  authority,  and  are  made  in  the  formal  diplo- 
matic way.^     In  the  extradition  treaty  between  the  United 

'  For  a  general  discussion  of  the  General,    p.    215,    Gushing   (1856). 

subject,   see   vol.   xvii.    Revue   de  All  demands  of  international  ex- 

Droit    Int.    p.    375;     xix.    Ibid.    p.  tradition  must  emanate  from  the 

545;   XX.  Ibid.  pp.  36,  54;   Hall,  §  supreme  political  authority  of  the 

13,  pp.  59-61;  Bar,  §§  147-153;  I  demanding  state. — VII  Opinions  of 

Phillimore,  §§  371-389.  Attorney-General,  p.  6.    There  can 

*  To  justify  the  commencement  be   no  actual  extradition  without 

of  process  in  extradition,  it  must  proper   requisition  to  that  effect, 

appear    that     the     criminal     acts  addressed  by  the  foreign  govern- 

cliarged    were    committed    within  ment   to  the    Secretary    of    State, 

the  territorial  jurisdiction   of  the  — VIII     Ibid.    p.    240.     A  foreign 

demanding  government. — David's  mandat  d'arret,  setting  forth  the 

case,  Vlli  Opinions  of  Attorney-  offence  of  a  fugitive  from  the  jus- 


EXTRADITION 


175 


States  and  Mexico,  however,  requests  for  extradition  may  be 
made  by  the  governors,  or  other  civil  authorities,  of  the  fron- 
tier states,  or,  in  case  the  civil  authority  is  suspended,  then 
through  the  military  officer  in  chief  command  of  such  state  or 
territory. 

Conditions  of  Extradition.  The  following  provisions  are 
included  in  most  treaties  and  statutes  on  the  subject  of  extra- 
dition : 

{a.)  The  more  serious  crimes  only,  amounting  to  felony  at 
common  law,  are  extraditable. 

{b.)  Those  crimes  only  are  extraditable  as  to  which  there  is 
a  general  agreement,  among  civilized  states,  in  the  matter  of 
definition,  proof,  and  punishment. 


tice  of  a  foreign  country,  within 
the  terms  of  any  treaty  of  extradi- 
tion, such  ;«a«^rt/,  coming  through 
the  proper  poh'tical  channel,  is  suf- 
ficient foundation  for  the  issue  of 
the  President's  warrant  authoriz- 
ing the  institution  of  proceedings 
before  the  judicial  authorities  of 
the  United  States. — Sucillon'scase, 
VII  Ibid.  p.  285,  Gushing  (1855). 
A  mere  notification  by  the  local 
officer  of  a  foreign  government  of 
the  escape  of  an  alleged  criminal 
is  not  sufficient  prima  facie  evi- 
dence of  a  case  to  justify  the  pre- 
liminary action  of  the  President. 
—  Maria  Theresa  Gerk's  case, 
VII  Ibid.  p.  6,  Gushing  (1854). 
Any  competent  magistrate  may 
take  jurisdiction  of  a  question 
of  international  extradition  volun- 
tarily ;  that  is,  without  the  previous 
application  of  the  foreign  govern- 
ment, or  issue  of  the  preparatory 
letters  permissive  of  the  President. 
— Wetherwax's  case,  VIII  Ibid.  p. 
240,  Gushing  (1856).  A  commis- 
sioner for  the  United  States,  ap- 
pointed by  the  circuit  court,  is  a 
magistrate  within  the  meaning  of 
the  law  and  of  the  treaty  of  Wash- 
ington, and  as  §uch  has  power  to 


apprehend,  examine,  and  certify  as 
to  fugitives  from  justice.  — IV  Ibid, 
p.  201.  A  requisition  for  a  fugi- 
tive is  not  necessary  to  a  prelimi- 
nary examination  upon  which  the 
evidence  of  criminality  is  to  be 
heard  and  considered,  but  with  a 
view  only  to  the  surrender,  after 
the  ascertainment  of  the  facts  show- 
ing the  party  charged  to  be  in  a 
condition  which  justifies  the  appre- 
hension and  commitment  for  trial 
according  to  the  laws  of  the  place 
where  he  or  she  shall  be  found. — 
Ibid.  The  mode  of  procedure  in 
such  cases  is  the  preferment  of  a 
complaint  to  a  judge  or  magistrate, 
setting  out  the  offence  charged  on 
oath,  whereupon  the  judge  or  mag- 
istrate may  issue  a  warrant  for  the 
apprehension  of  the  person  accused. 
Upon  the  accused  being  brought 
before  the  judge  or  magistrate,  the 
latter  should  hear  and  consider  the 
evidence  of  criminality;  and  if  on 
such  hearing  the  evidence  be 
deemed  sufficient  to  sustain  the 
charge,  the  same  should  be  certi- 
fied to  the  executive  authority, 
that  a  warrant  may  issue  for  the 
surrender. — Ibid. 


176 


THE    ELEMENTS   OF    INTERNATIONAL   LAW 


(c.)  The  sufficiency  of  evidence  as  to  the  crime  for  which 
extradition  is  asked  is  determined,  in  a  majority  of  cases, 
by  the  law  of  the  state  in  which  the  criminal  has  taken 
refuge/ 

{d.)  A  state,  before  giving  effect  to  a  request  for  extradi- 
tion, will  punish  the  criminal  for  any  offence  which  he  may 
have  committed  against  its  own  municipal  laws. 

{e.)  Most  states  will  surrender  a  criminal  only  with  the  un- 
derstanding that  he  is  to  be  tried  for  the  crime  mentioned  in 
the  request  for  extradition,  and  for  no  other.'' 

(/.)  Many  states,  for  a  reason  already  given,'  decline  to  sur- 


'/«  re  Ezeta,  62  Fed.  Rep.  p. 
972.  A  fugitive  from  the  justice 
of  Great  Britain,  charged  with  the 
commission  of  the  crime  of  murder 
in  Scotland,  apprehended  in  the 
United  States,  and  examined  be- 
fore a  commissioner,  and  by  him 
certified  to  be  probably  guilty  on 
the  evidence  adduced,  should 
be  delivered  up  to  justice,  if  the 
evidence  upon  which  the  appli- 
cation is  founded  be  such  as,  ac- 
cording to  the  laws  of  the  place 
where  the  fugitive  shall  be  found, 
would  justify  his  or  her  apprehen- 
sion and  commitment  for  trial  if 
the  crime  had  there  been  commit- 
ted.—  Christiana  Cochrane's  case, 
IV  Opinions  of  Attorney-General, 
p.  201,  Nelson  (1843). 

^  In  Lawrence's  case  (XV  Opin- 
ions of  Attorney-General,  p.  501),  it 
was  held  that  "  where  a  fugitive  is 
extradited  under  the  treaty  of  1842 
between  Great  Britain  and  the 
United  States  (Pub.  Trs.  p.  432), 
and  where  the  surrender  is  effected 
pursuant  to  the  British  act  of  1870, 
the  provisions  of  the  act  of  1870 
have  no  bearing  whatever  upon  the 
rights  or  duties  of  the  government 
under  the  treaty."  It  was  also  held 
that  the  treaty  of  1842  with  Eng- 
land does  not  forbid  the  trial  of  a 
fugitive  delivered  under  it  for  an 


offence  other  than  that  for  which 
he  was  surrendered.  The  practice 
and  decisions  in  the  United  States, 
the  decisions  in  Canada,  and  the 
understanding  of  the  executive  and 
judicial  authorities  of  Great  Britain 
have  all  agreed  in  considering  that 
fugitives  when  surrendered  to  jus- 
tice are  surrendered  absolutely,  and 
that  a  prisoner  so  surrendered  is 
subject  to  trial  for  offences  other 
than  the  particularofTenceforwhich 
he  was  surrendered.  Uponthe  point 
that  a  surrendered  criminal  may,  in 
the  absence  of  any  prohibition  in 
the  treaty,  be  tried  for  offences  other 
than  those  for  which  he  was  sur- 
rendered, see  also  United  States 
vs.  Caldwell,  8  Blatchford,  131  ; 
United  States  vs.  Lawrence.  U. 
S.  C.  C.  So.  Dist.  N.  Y.,  Bene- 
dict, J.,  March,  1876;  Adriance  w. 
Lagrave,  59  N.  Y.  R.  no.  And 
in  Canada,  Paxton's  case,  10  Low. 
Can.  Rep.  212,  it,  352;  Von  Aer- 
nam's  case.  Up.  Can.  Rep.  4  C  P.- 
288;  In  re  Israel  Rosenbaum,  Su- 
preme Ct.  Canada,  1874.  See  also 
Ex.  Doc.  H.  R.  173-  44  Cong,  i 
Sess.;  Foreign  Relations  of  the 
United  States,  1876,  pp.  204-240, 
261-264;  1877,  pp.  271-279  (Wins- 
low's  case).  See  also  II  Moore,  §§ 
170-172. 
'  See  pp.  168,  169. 


EXTRADITION 


177 


render  their  own  citizens,  or  subjects,  whose  extradition  is 
asked  by  a  foreign  state.' 

{£■.)  Most  states  refuse  to  surrender  persons  charged  with 
poHtical  crimes/ 

(/i.)  Due  regard  being  had  to  differences  between  codes  of 
criminal  law  and  procedure,  crimes  can  best  be  tried  and  pun- 
ished at  the  place  where  they  were  committed. 

Extradition  Treaties  of  the  United  States.  The  United 
States  has  thus  far  negotiated  thirty-seven  extradition  treaties.' 
The  first  was  entered  into  in  1794,  and  is  comprised  in  Article 
27  of  Jay's  Treaty  with  England.  It  included  the  crimes  of 
murder  and  forgery  only,  and  contained  no  stipulation  as  to 
the  manner  in  which  persons,  charged  with  either  of  these 
crimes,  were  to  be  extradited.  No  legislation  was  had  by 
Congress  for  the  purpose  of  carrying  that  part  of  the  treaty 
into  effect,  and,  as  it  was  not  self-executing,  it  was  held  to  be 
legally  inoperative,  and  expired  by  limitation  in  1806." 


1  Boyd's  Wheaton,  pp.  165,  166. 
I  Phillimore,  §  367. 

'  Emigrants  and  exiles  for  cause 
of  political  difference  at  home  are 
entitled  to  asylum  in  this  country, 
but  not  malefactors  ;  on  the  con- 
trary, the  foreign  government  which 
reclaims  its  fugitive  malefactors  is 
serviceable  to  us  by  ridding  us  of 
the  intrusive  presence  of  crime. — 
Sucillon's  case,  VII  Opinions  of  At- 
torney-General, p.  536,  Gushing 
(1855);  vol  xxix.  Revue  de  Droit 
Int.  pp.  5-16;  xxiv.  Ibid.  pp.  17- 
39;  xiv.  Ibid.  pp.  403,  475. 

^  When  reclamation  of  a  fugitive 
from  justice  is  made  under  treaty 
stipulation  by  any  foreign  govern- 
ment, it  is  the  duty  of  the  United 
States  to  aid  in  relieving  the  case 
of  any  technical  difficulties  which 
may  be  interposed  to  defeat  the 
ends  of  public  justice,  the  object 
to  be  accomplished  being  alike 
interesting  to  both  governments — 
namely,  the  punishment  of  male- 
factors, who  are  the  common  ene- 


mies of  all  society. — VII  Opinions 
of  Attorney-General,  p.  536. 

■*  Thomas  Nash,  cj/i'as  Robins,  was 
charged  with  having  committed 
murder  on  board  the  Hermione, 
a  British  war  vessel,  on  the  high 
seas  ;  requisition  was  made  by  the 
British  minister  for  the  delivery 
of  the  ofiender  under  the  twenty- 
seventh  article  of  the  treaty  of  1 794. 
(Pub.  Trs.  p.  379.)  The  district 
judge  of  South  Carolina,  before 
whom  the  prisoner  was  brought 
by  habeas  corpus,  made  an  order, 
as  is  stated,  at  the  particular  re- 
quest of  the  President  of  the  Unit- 
ed States,  that,  as  there  was  sufTi- 
cient  evidence  of  criminality  to 
justify  the  apprehension  and  com- 
mitment for  trial  of  the  prisoner, 
he  be  delivered  over  by  the  marshal 
of  the  court  to  the  British  consul 
under  the  twenty-seventh  article  of 
the  treaty.  —  Bee's  Adm.  Rep.  p. 
267.  This  was  the  celebrated  case 
of  Robins,  who  claimed  to  have 
been  an  impressed  American  sea- 


178  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

Of  the  extradition  treaties  entered  into  by  the  United  States, 
twenty-two  contain  the  provision  that  poHtical  offences  are 
not  extraditable,  though  none  of  them  contain  a  definition  of 
the  term.  Twenty-three  contain  a  provision  that  citizens  of 
the  state  upon  which  the  demand  is  made  are  not  to  be  sur- 
rendered ;  as  citizens  are  not  excepted  in  the  other  treaties, 
the  presumption  is  that  they  would  be  surrendered  upon  due 
application.  Twenty-four  of  them  contain  a  clause  authorizing 
the  surrendering  state  to  try  and  punish  offences  against  its 
own  laws  before  giving  effect  to  the  extradition  process.  In 
all  of  them  it  is  expressly  stipulated  that  the  sufficiency  of 
evidence  as  to  the  commission  of  the  crime  for  which  extradi- 
tion is  demanded  shall  be  determined  by  the  laws  of  the  state 
in  which  the  criminal  has  taken  refuge.' 

Interstate  Extradition.  The  subject  of  interstate  extradi- 
tion in  the  United  States  is  regulated  by  the  Federal  Consti- 
tution,  which  provides  that  "  a  person  charged  in  any  state 
with  treason,  felony,  or  other  crime,  who  shall  flee  from  jus- 
tice, and  be  found  in  another  state,  shall,  on  demand  of  the 
executive  authority  of  the  state  from  which  he  fled,  be  de- 
livered up,  to  be  removed  to  the  state  having  jurisdiction  of 
the  crime."'     This  provision  covers  only  cases  arising  within 

man.     This  surrender  gave  rise  to  Feng  Yue  Ting,  149  United  States, 

attacks  upon  President  Adams, and  pp.  698,  714;  Ornelos  w.  Ruiz,  161 

the  speech  of  Mr.  Marshall,  after-  United  States,  502.     The  contrary 

wards  Chief-Justice,  is  attached  as  rule  prevails,  however,  in  England. 

a  note  to  the  above  report.     See  based  upon  the  statute  regulating 

Wharton's   State   Trials,   pp.   392-  the  practice  of  extradition  (33  and 

456.  34  Vict.  chap.  Hi.  §§  3  and  1 1),  which 

>  In    the    United    States    it    has  expressly  provide  that  the  writ  shall 

been  held  that  a  person  detained  issue  when  there  is  reason  to  believe 

under  extradition  process,  regular-  that  the  accused  is  a  political  of- 

ly  issued  under  authority  conferred  fender.     By  section  1 1  of  the  same 

by  a  statute  or  treaty  of  the  United  statute  the  writ  is  demandable  by 

States,  is  not  subject  to  release  un-  any  person  arrested  with  a  view  to 

der  a  writ  of  habeas  corpus. — Ih  re  his  extradition,  within  fifteen  days 

Breen,  73  Fed.  Rep.  p.  458;  hi  re  subsequent  to  his  arrest.— See  Or- 

Nevvman,    79  Ibid.   p.  622;   /;/   re  nelos  vs.  Ruiz,  161  United  States, 

Bryant,  80  Ibid.  p.  282 ;  In  re  Otieza  502. 

y  Cortez,   Petitioner,    136    United  ^Constitution     of    the     United 

States',    p.    330 ;    Benson    vs.    Mc-  States,  §  2,  art.  4. 
Mahon,    127    United   States,  457; 


EXTRADITION 


179 


the  territorial  limits  of  the  United  States.  The  power  to  sur- 
render fugitives,  who,  having  committed  offences  within  the 
jurisdiction  of  a  foreign  state,  have  fled  to  one  of  the  United 
States  for  shelter,  belongs,  under  the  Constitution,  exclusively 
to  the  United  States.'  The  practice  of  extradition  between 
the  states  of  the  Federal  Union  is  carried  on  with  nearly  as 
much  strictness  as  is  that  between  foreign  nations,  and  in  ac- 
cordance with  similar  rules.  It  has  been  decided,  however,  by 
the  Supreme  Court  of  the  United  States  that  the  term  "  other 
crime,"  as  used  in  the  extradition  clause  of  the  Federal  Con- 
stitution, refers  to  the  definition  of  the  offence  according  to 
the  law  of  the  state  in  which  the  crime  has  been  committed.' 
In  this  respect  the  rule  of  interstate  extradition  is  opposed  to 


*  George  Holmes  was  arrested 
in  the  State  of  Vermont  on  a 
warrant  or  order  of  the  governor 
of  the  state,  addressed  to  a  sher- 
iff, stating  that  an  indictment 
had  been  found  against  him  for 
murder  in  Canada,  and  that  as  it 
was  fit  and  expedient  that  he  should 
be  made  amenable  to  the  laws  of 
the  country,  commanding  the  sher- 
iff to  convey  him  to  the  border  be- 
tween Canada  and  Vermont,  and 
deliver  him  to  the  Canadian  au- 
thorities. A  habeas  corpus  was  is- 
sued by  the  supreme  court,  and  the 
prisoner  was  remanded,  and  a  writ 
of  error  taken  to  the  Supreme 
Court  of  the  United  States.  The 
court  being  equally  divided  as  to 
the  question  of  jurisdiction,  the 
writ  of  error  was  dismissed.  The 
court,  however,  considered  at 
length  the  question  of  the  author- 
ity of  the  governor  of  the  State  of 
Vermont  to  surrender  a  fugitive 
criminal,  and  Chief-Justice  Taney, 
in  his  opinion,  in  which  Justices 
Story,  McLean,  and  Wayne  con- 
curred, stated,  as  the  conclusion 
of  the  majority  on  this  point: 
"  Upon  the  whole,  therefore,  my 
three  brothers  and  myself,  after  a 


most  careful  and  deliberate  ex- 
amination, are  of  opinion  that  the 
power  to  surrender  fugitives,  who, 
having  committed  offences  in  a 
foreign  country,  have  fled  to  this 
for  shelter,  belongs,  under  the  Con- 
stitution of  the  United  States, 
exclusively  to  the  Federal  Govern- 
ment, and  that  the  authority  exer- 
cised in  this  instance  by  the  gov- 
ernor of  Vermont  is  repugnant  to 
the  Constitution  of  the  United 
States." — Holmes  vs.  Jennison,  14 
Peters,  540.  After  this  opinion 
Holmes  was  discharged  by  the  su- 
preme court  of  Vermont  on  habeas 
corpus.  A  similar  question  arose 
in  New  York  in  1 874,  Governor  Dix 
having  ordered  the  surrender  of 
Carl  Vogt,  alias  Stupp,  after  a  re- 
fusal by  the  President  to  surrender 
him  to  Germany,  as  the  offence 
was  committed  out  of  her  terri- 
tory, or  to  Belgium,  in  the  absence 
of  treaty  provisions.  The  court 
unanimously  agreed  in  discharging 
the  prisoner,  on  the  ground  that 
the  governor  had  no  power  to  make 
the  surrender.  —  The  People,  Bar- 
low vs.  Curtis,  50  N.  Y.  R.  321. 

Kentucky     vs.     Dennison,    24 
Howard,  66. 


l80  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

the  international  rule  on  the  same  subject.  This  should  be 
the  case,  as  the  systems  of  criminal  law  and  procedure,  the 
rules  of  evidence  in  criminal  cases,  and  the  punishments  im- 
posed for  criminal  offences,  in  the  several  states  of  the  Union, 
are  so  nearly  the  same  as  to  make  the  observance  of  the  inter- 
national rule  unnecessary. 

The  same  tribunal  has  also  held,  in  a  leading  case,  that 
"where  demand  is  made  in  due  form,  it  is  the  duty  of  the  ex- 
ecutive on  whom  the  demand  is  made  to  respond  to  it,  and  he 
has  no  moral  right  to  refuse.  Nevertheless,  if  he  does  refuse, 
no  power  has  been  conferred  on  the  Federal  courts  to  compel 
obedience,  and  the  governors  of  states  have  often  refused  com- 
pliance with  the  demand,  when,  in  their  opinion,  substantial 
justice  did  not  require  it."  ' 


References.  For  the  latest  and  most  valuable  discussion  of  the  im- 
portant subject  of  Extradition,  both  international  and  interstate,  see 
"  Moore  on  Extradition,"  by  J.  B.  Moore,  formerly  of  the  Department  of 
State,  but  now  Professor  of  International  Law  in  Columbia  College ;  see 
also  Spear's  "Law  of  Extradition";  Hall,  "International  Law,"  p.  60; 
I  Halleck,  chap.  vii.  §§  28-35;  Boyd's  Wheaton,  pp.  156-162,  and  pp. 
645-650;  Amos,  "Science  of  Law,"  p.  263;  Kliiber,  §§  60-66;  I  G.  F.  De 
Martens,  §§  99-102  ;  Heffter,  §§  63,  63a  ;  Bar,  p.  17,  and  pp.  620-737 ;  Teich- 
mann,  "  Les  Delits  Politiques,  le  Regicide  et  I'Extradition,"  in  vol.  xi. 
of  the  "Revue  de  Droit  International,"  pp.  475-524;  see  also  vol.  xiv. 
Ibid.  pp.  403-413,  475-526;  vol.  xvii.  Ibid.  p.  375;  xix.  Ibid.  p.  545;  xx. 
Ibid.  pp.  36,  55  ;  xxiv.  Ibid.  pp.  17-38;  vol.  ii.  "  Int.  Law  Digest,"  §§  208- 
282,  and  "  Foreign  Relations  of  the  United  States  for  1878,"  p.  268. 

*  Cooley,  Const.  Law,  p.  191 ;  Kentucky  vs.  Dennison,  24  Howard,  66. 


CHAPTER  VI 


"^ 


PRIVATE  INTERNATIONAL   LAW:    THE   CONFLICT  OF   LAWS 

Relations  of  States  and  Individuals  at  International 
Law.  It  has  been  seen  that  "  the  relations  of  states  to  one 
another  are  twofold  in  character.  Either  the  governments  of 
the  different  states  have  relations  to  each  other,  or  the  indi- 
vidual citizens  of  the  different  states  have  relations  to  each 
other.  The  first  class  of  relations  give  occasion  to  what  is 
called  '  Public  International  Law,'  and  the  latter  to  what  is 
sometimes  called,  with  less  precision,  *  Private  International 
Law.' "' 

Private  International  Law.  That  branch  of  international 
law  which  treats  of  the  relations  of  states  with  the  citizens  or 
subjects  of  other  states  is  called  Private  International  La7v : 


'  Amos,  Science  of  Law,  p.  25. 
Modern  legislation  in  dealing  with 
purely  private  relations  between  in- 
dividuals is  more  anxious  to  give 
effect  to  those  relations  as  they 
really  are,  or  as  it  is  conceived  that 
they  ought  to  be,  than  to  affirm 
the  exclusiveness  of  the  rights  of 
sovereignty ;  and  there  are  many 
cases  in  which  this  object  is  best 
attained  by  allowing  the  law  of  the 
country  to  which  a  foreigner  be- 
longs to  operate  in  lieu  of  the  local 
law,  or  by  allowing  a  subject  to  be 
afTected  by  a  foreign  instead  of  his 
national  law,  when  the  two  are  in 
conflict.  The  concessions  and  re- 
laxations of  sovereign  rights  which 
it  has  become  customary  for  civil- 
ized nations  to  make  for  these  rea- 
sons have  given  rise  to  a  body  of 


usage  of  considerable  bulk,  called 
private  international  law.  Private 
international  law  is  not,  however, 
a  part  of  international  law  proper. 
The  latter,  as  has  been  seen,  is  con- 
cerned with  the  relations  of  states  ; 
in  so  far  as  individualsare  affected, 
they  are  affected  only  as  members 
of  their  state.  Private  internation- 
al law,  on  the  other  hand,  is  merely 
a  subdivision  of  national  law.  It 
derives  its  force  from  the  sover- 
eignty of  the  slates  administering 
it ;  it  affects  only  the  relations  of 
individuals  as  such  ;  and  it  consists 
in  the  rules  by  which  courts  deter- 
mine within  what  national  juris- 
diction a  case  equitably  falls,  or 
by  what  national  law  it  is  just  that 
it  shall  be  decided. — Hall,  §  10,  p. 
54- 


1 82      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

or,  as  it  is  a  question  of  determining  whether  the  courts  of  a 
state  are  to  apply  their  own  municipal  law,  or  that  of  another 
state,  in  the  decision  of  a  given  cause,  it  is  sometimes  called, 
and  with  greater  accuracy  and  propriety,  the  Conflict  of  Laws. 

The  Practice  Based  on  Comity  or  Consent.  From  the 
definition  of  sovereignty  it  has  been  seen  that  "the  jurisdic- 
tion of  a  nation  within  its  own  territory  is  necessarily  exclu- 
sive and  absolute.  It  is  susceptible  of  no  limitations  not  im- 
.  posed  by  itself.  Any  restriction  upon  it  deriving  validity  from 
any  external  source  would  imply  a  diminution  of  the  sover- 
eignty to  the  extent  of  the  restriction,  and  an  investment  of 
that  sovereignty  to  the  same  extent  in  that  power  which  could 
impose  such  restriction." '  The  extent,  therefore,  to  which  the 
courts  of  one  state  may  apply  the  laws  of  another  in  the  de- 
cision of  cases,  as  it  is  based  upon  comity  or  consent,  must  be 
determined  by  the  municipal  law  of  the  state  in  which  the 
court  sits.  It  may  be  prohibited  altogether,  or  may  be  per- 
mitted subject  to  such  restrictions  as  that  state  may  see  fit  to 
impose  in  accordance  with  its  views  of  justice  or  expediency.' 

Origin  of  the  Practice.     The  rules  of  private  international 


'  Caseof  the  Exchange,  7  Cranch,  comity  of  nations,"  the  laws  of  one 

116.  nation  or  state  will  be  recognized 

"  (I.)  The   laws  of  every  empire  and  executed  in  another,  where  the 

have  force  only  within  the  limits  of  rights  of  individuals  are  concerned, 

.its  own  government.     (2.)  That  all  Whatever  force  and  obligation  the 

persons  who  are  found  within  the  lawsof  one  country  have  in  another, 

limits  of  a   government,   whether  depend  entirely  upon  the  laws  and 

their   residence    is    permanent    or  municipal  regulations  of  such  other 

only  temporary,  are  to  be  deemed  country;  in  other  words,  upon  its 

subjects    thereof.      (3.)    That    the  own  proper  jurisprudence  and  pol- 

rulers  of  every  empire,  from  com-  ity,  and    upon   its  own  express  or 

ity,  admit  that  the  laws  of  every  tacit  consent. — Huberus,  liv.  i.  tit. 

people   in   force  within    its  limits  iii.  §  2  ;  vol.  iii.  Eng.  and  Am.  Cyc. 

ought  to  have  the  same  force  every-  of  Law,  p.  502.     This  comity  is  the 

where,  so  far  as  they  do  not  preju-  purely  voluntary  act  of  the  nation 

dice  the  powers  or  rights  of  other  or  state,  and  is  totally  inadmissible 

governments,  or  their   subjects.  —  when  the  laws  of  the  foreign  state 

Huberus,  liv.   i.  tit.  iii. ;   De  Con-  or  nation  are  contrary  to  its  policy, 

flictu  Legum,  p.  538,  §  2;  vol.  iii.  or   prejudicial    to    its    interests. — 

Eng.and  Am.Cyc.of  Law,p.5o2.  By  Minor  7'.y.  Cardwell,  37,  Mo.  350,  and 

the  universal  practice  of  civilized  cases  cited  in  vol.  iii.  Eng.and  Am. 

countries,  by  what  is  known  as  "the  Cyc.  of  Law,  p.  506. 


PRIVATE   INTERNATIONAL   LAW  1 83 

law  come  into  being  through  the  moral  claim  that  is  presented 
either  by  persons  who,  not  being  citizens  of  a  given  country, 
come  into  the  courts  of  justice  of  that  country  while  sojourn- 
ing there  to  have  rights  recognized  and  protected  which  they 
have  acquired  in  their  own  country  ;  or,  by  those  who,  being 
citizens  of  one  country,  but  having  acquired  rights  while  so- 
journing in  other  countries,  come  into  the  courts  of  their  own 
country  to  have  those  rights  recognized  and  protected. 

On  every  occasion  for  inventing  rules  applicable  to  these 
cases  the  question  is  presented  whether  the  courts  of  justice 
of  a  country  shall  recognize  rights  acquired,  either  by  their 
own  citizens  or  by  foreigners,  in  other  countries ;  or,  in  other 
words,  whether  the  laws  of  other  countries,  giving  validity  to 
those  rights,  shall  or  shall  not  be  held  to  be  effectual  in  the 
courts  of  justice  which  are  invited  to  interfere.  The  cases  are 
generally  further  complicated  by  the  nature  of  the  processes 
and  transactions  out  of  which  the  asserted  rights  spring.  Part 
of  the  transactions  may  have  taken  place  in  one  country  and 
part  in  another,  and  the  remedy  may  be  sought  for  in  a  third. 
Or,  the  person  seeking  the  remedy,  or  against  whom  the  rem- 
edy is  sought,  may  be  the  citizen  of  one  country,  have  his 
permanent  residence  or  domicile  in  another  country,  and  be 
temporarily  sojourning  in  the  country  in  which  the  remedy  is 
sought. 

It  is  obvious,  from  a  mere  enumeration  and  description  of 
the  cases  which  give  rise  to  rules,  that  the  purpose  of  the  ex- 
istence of  these  rules  is  always  the  facilitation  of  intercourse 
between  the  citizens  of  different  states,  and  the  prevention  of 
practical  injustice.  These  objects  must  be  served  in  the  high- 
est degree,  if  the  greatest  possible  uniformity  of  principle  ob- 
tain, in  the  courts  of  all  nations,  in  creating  and  applying  the 
rules.  In  this  way  reasonable  expectations  are  likely  to  be 
best  satisfied,  and  fraudulent  invasions  of  the  law  of  any  par- 
ticular country  are  likely  to  be  most  effectually  prevented. 
It  happens,  however,  that,  owing  to  the  political  jealousies 
that  have  hitherto  kept  apart  the  most  considerable  nations  of 
Europe,  and  to  the  foolish  prejudice  with  which  individual 


184  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

nations  have  fostered  principles  of  law  familiar  in  their  own 
courts,  however  alien  to  the  practice  of  all  other  countries, 
there  have  hitherto  been  made  only  very  imperfect  attempts 
at  uniformity,  either  of  principle  or  practice,  in  this  respect. 
It  is  probable  that  an  increasingly  clear  apprehension  of  the 
logical  relations  of  the  different  branches  of  law  touching 
ownership,  contract,  family  life,  or  crime,  will  produce  the  ef- 
fect of  assimilating  the  substance,  as  well  as  the  form,  of  the 
rules  of  law  forming  the  so-called  "Private  International  Law 
of  different  countries."  ' 

As  the  practice  of  private  international  law  is  based  upon 
the  comity  of  nations,  it  is  obvious  that  it  cannot  antedate  in 
its  origin  the  recognition  of  comity  as  a  general  international 
obligation.  The  remote  origin  of  the  practice,  however,  is 
much  more  ancient,  and  can  be  traced  to  XhQ  j'lis  gentium  of 
the  Romans,  which  was,  in  substance,  a  formal  recognition  of 
the  principles  involved  in  private  international  law  by  the 
greatest  state  that  has  ever  existed.  The  Roman  civil  law 
applied  to  Roman  citizens  alone;  \.h.Q  Jus  gentium,  or  law  of 
nations,  was  made  up  of  those  principles  of  law  which  were 
common  to  all  the  nations  of  which  they  had  any  authentic 
knowledge.  This  system  was  administered  by  the  Roman 
courts  during  the  existence  of  the  empire,  and  was  revived, 
by  Grotius,  more  than  a  thousand  years  after  the  downfall  of 
the  state  in  which  it  had  originated,  for  the  purpose  of  furnish- 
ing a  logical  and  legal  basis  for  the  new  science  of  interna- 
tional law.'^ 

The  rules  of  domicile,  which  lie  at  the  base  of  the  subject, 
were  the  first  to  receive  attention,  and  to  be  made  the  subject 
of  judicial  decision.  This  was  especially  true  of  their  applica- 
tion by  prize-courts  in  ascertaining  the  domicile  of  owners  of 
captured  vessels,  with  a  view  to  determining  the  national- 
ity, and  so  the  liability  to  capture  and  condemnation,  of  their 

'  Amos,  Science  of  Law,  pp.  26,         "  IV  Phillimore,  chap.  i.  §§  i,  9- 

27;   Hall,  §  10,  p.   54;    IV  Philli-  13;   Maine,  Int.  Law,  pp.   20,  26- 

more,  chap.  i. ;  Wharton,  Com.  on  28  ;  Bar,  §  2. 
Amer.  Law,  §  252. 


PRIVATE   INTERNATIONAL   LAW  I85 

property.  Aside  from  this,  however,  but  little  attention  was 
paid  to  the  subject,  as  a  matter  of  public  law,  until  after  the 
middle  of  the  seventeenth  century,  when  the  rules  regarding 
the  treatment  of  aliens  began  to  be  relaxed  in  severity,  and 
the  alien  class  began  to  receive  protection  in  their  personal 
and  property  rights.  Its  progress  has  not  been  rapid  at  any 
time,  though  an  increased  interest  in  it  has  been  manifested 
since  the  beginning  of  the  present  century,  and  all  states  that 
are  parties  to  international  law  now  recognize  its  rules,  and,  to 
a  greater  or  less  extent,  permit  their  courts  to  apply  them  in 
the  decision  of  cases  arising  within  their  jurisdiction.  Their 
practice  is  far  from  uniform,  however,  some  states  being  slow 
to  recognize  their  binding  force,  while  others  constantly  seek 
to  extend  their  field  of  operation,  at  times  going  so  far  as  to 
negotiate  treaties  for  that  purpose.  The  tendency  of  all  mod- 
ern states  is  in  the  same  direction,  though  some  move  more 
rapidly  than  others.' 

3.  Subjects  Treated  of  in  Private  International  Laiv.  The 
rules  of  private  international  law  have  chiefly  to  do — 

(i.)  With  the  legal  status  of  aliens,  and  with  their  capacity  to 
do  certain  acts  in  a  state,  not  in  accordance  with  its  municipal 
law,  but  in  accordance  with  the  municipal  law  of  another  state. 

(2.)  With  questions  arising  as  to  the  validity  of  foreign  mar- 
riages or  divorce. 

(3.)  With  similar  questions  arising  as  to  the  validity  or  bind- 
ing force  of  contracts  or  agreements. 

(4.)  With  questions  connected  with  the  ownership,  or  trans- 
fer, of  land  and  goods. 

(5.)  With  foreign  judgments  and  bankruptcies.'' 

Limitations  upon  the  Practice  of  Private  International 
Law.  The  courts  of  a  state,  in  applying  the  rules  of  private 
international' law  in  any  one  of  the  foregoing  cases,  cannot 
give  effect  to,  or  apply,  a  foreign  law  which  imposes  a  penalty, 

'  IV  Phillimore,  §§  1-21  ;  Story,         ^  Amos,  Science  of  Law,  p.  319; 
Conflict  of  Laws,  §§  1-20 ;  Wharton,      IV  Phillimore,  chap.  ii. 
Conflict  of  Laws,  §§  979-1006;  Bar, 
§§  1-27- 


1 86  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

or  is  repugnant  to  the  municipal  law,  or  moral  standards,  or 
public  policy  of  their  own  state.'  In  accordance  with  this  prin- 
ciple the  following  exceptions  are  now  generally  recognized  : 

(i.)  Distinctions  of  rank,  or  caste,  have  no  extra-territorial 
effect.' 

(2.)  Laws  destructive  of  capacity  are  disfavored  internation- 
ally ;  those  protective  of  capacity  are  favored.  To  the  former 
class  would  belong  laws  recognizing  slavery,  or  imposing  dis- 
abilities on  account  of  religious  belief.^ 

(3.)  Property,  whether  real  or  personal,  is  subject  to  the  lex 
ret  sitcB.*' 

(4).  In  all  matters  relating  to  a  decedent's  estate,  except  as 
to  realty,  the  law  of  the  last  domicile  of  the  decedent  is  to 
prevail.^ 

(5.)  Contracts,  as  a  general  rule,  are  to  be  governed  by  the 
law  of  the  place  of  performance.* 

(6.)  Process,  as  a  general  rule,  is  to  be  governed  by  the  lex 
fori.'' 

(7.)  Persons  are,  in  general,  subject  to  the  law  of  their  dom- 
icile ;  "  but,  when  visiting  other  lands,  they  can  only  claim  to 
be  invested  with  the  law  of  such  domicile  to  the  extent  which 

'  Wharton,  Com.  on  Amer.  Law,  ^  Wharton,  Conflict  of   Laws,  §§ 

§253;  Ibid.  Conflict  of  Laws,  §  19;  5-9,   98-103;    Story,  Ibid.  §§  95- 

IV  Phillimore,  pp.  12-18.     Forthis  104. 

reason  courts  will  not  recognize  tiie  *  United   States    vs.    Crosby,    7 

existence  of  slavery  or  polygamy,  or  Cranch,   115;  Clark  7'i-.  Graham,  6 

enforce  contracts  which  recognize  Wheaton,  577  ;  Oakey  vs.  Bennett, 

slaves  as  property ;  nor  will  a  for-  11    Howard,  33;   Christian   Union 

eigner  be  permitted  to  inflict  chas-  vs.  Yount,  loi  United  States,  352  ; 

tisemicnt,  or  practise  cruelty,  upon  IV  Phillimore,  pp.  427-457  ;  Stor}', 

a  member  of  his  family  or  suite  be-  §§  374-463;  Wharton,  §§  297-311. 

cause  such  practices  are  warranted  ^  IV  Phillimore,  p.  673;  Wharton, 

by  the  laws  of  his  state  or  country.  Conflict  of  Laws,  §  560  ;  Ibid.  Com. 

—  IV  Phillimore,  pp.  16,  17;  Whar-  on  Amer.  Law,  §  339;   Story,  chap, 

ton, Conflictof Laws, §§  101-105.  See  xii. 

also  Schulze-Berge  vs.  the  Guild-  '  Wharton,  Com.  on  Amer.  Law, 

hall,  58  Fed.  Rep.  796;    Brown  w.  §§  314-322  ;  IV  Phillimore,  pp.  531- 

Amer.  Finance  Co.  31  Ibid.  516.  541  ;    Story,   §§  279-282  ;  Wharton, 

^  Wharton,  Conflict  of   Laws,  §§  Conflict  of  Laws,  §§  3973-401  p. 

101-105,    109;    Story,  Conflict    of  'Wharton,  Conflict  of  Laws,  §§ 

Laws,  §§  96,  104;  IV  Phillimore,  §§  704-752;    IV   Phillimore,   p.   706; 

12-25.  Story,  §§  530-580, 


PRIVATE    INTERNATIONAL    LAW  1 8/ 

is  consistent  with  the  common  law  of  Christendom,  which 
is  the  foundation  of  private  international  law."  Hence  "  a 
polygamous  or  incestuous  marriage,  even  though  sanctioned 
by  a  foreign  state,  and  contracted  within  its  borders,  has  no 
exterritorial  force.  Foreign  judgments  of  divorce,  to  be  re- 
spected, must  be  rendered  by  courts  having  jurisdiction 
according  to  the  judgments  of  private  international  law. 
Foreign  incapacity,  arising  from  minority  or  subjection  to 
tutelage,  will  only  be  recognized  when  there  is  something  in 
the  person  so  subjected  to  put  persons  dealing  with  him  on 
inquiry." ' 

Effect  of  Foreign  Judgments.  A  foreign  judgment  is  one 
obtained  in  the  courts  of  a  foreign  state,  the  recognition  and 
enforcement  of  which  is  asked  in  the  courts  of  the  state  in 
which  the  defendant  is  resident,  or  subject  to  legal  process. 
The  great  majority  of  states  give  effect  to  a  foreign  judgment 
in  all  cases  in  which  the  following  conditions  have  been  ful- 
filled: 

(i.)  The  tribunal  which  pronounced  the  judgment  must 
have  been  competent,  according  to  the  law  of  the  state  to 
which  it  belonged,  to  decide  upon  the  matter  adjudicated 
upon. 

(2.)  The  jurisdiction  must  have  been  complete  both  as  to 
subject-matter  and  over  the  parties  to  the  suit. 

(3.)  The  foreigner  who  was  a  party  must  have  been  fairly 
heard  before  the  tribunal,  according  to  the  laws  of  the  state, 
and  on  an  equality,  in  every  respect,  including  the  right  of 
appeal,  with  a  native  subject. 

(4.)  The  tribunal  must  have  decided  upon  the  very  sub- 
ject-matter which  it  is  attempted  to  litigate  upon,  and  the 
decision  must  have  been  final,  or  made  by  the  court  of  last 
resort.' 

Condition  of  Reciprocity.  To  these  conditions  some  na- 
tions add  another,  that  of  reciprocity.     If  these  conditions  are 

'  Wharton,  Conflict  of  Laws,  §  19 ;  Story,  §§  564-618  ;  Wharton,  Con- 
IV  Phillitnore,  pp.  302-312.  flict  of  Laws,  §§  792-796;    Bar,  § 

2  IV  Phillimore,   pp.   729,    730;     126. 


1 88      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

fulfilled  they  will  constitute  a  valid  ground  upon  which  to  base 
a  plea  in  bar  of  a  second  litigation,  and,  if  properly  authen- 
ticated, the  foreign  judgment  will  be  executed  by  them  as  if 
it  were  their  own.' 

Foreign  Judgments,  why  Produced  before  the  Courts  of 
a  State.  Whenever  a  foreign  judgment  is  brought  to  the  ju- 
dicial notice  of  the  courts  of  a  state  it  is  with  a  view  of  obtain- 
ing one  of  two  results  : 

(i.)  "It  may  be  pleaded  in  bar. 

(2.)  "  It  may  be  given  effect  to,  and  executed  in  the  same 
manner  as  a  domestic  judgment.'"' 

Conditions  under  which  they  are  Given  EfTect.  In  ac- 
cordance with  the  practice  of  most  states  of  Christendom, 
foreign  judgments  are  permitted  to  have  effect  only  in  the 
following  cases  : 

(i.)  With  the  consent  of  the  state  in  which  execution  is 
desired. 

(2.)  By  the  authority  and  order  of  its  tribunals. 

(3.)  When  it  contains  no  provisions  or  order  contrary  to  the 
public  morals  or  policy  of  the  state  in  which  execution  of  it  is 
sought.^ 

Practice  of  States  in  the  Matter  of  Foreign  Judgments. 
Although  there  is  considerable  variance  in  the  policy  of  states 
as  to  the  effect  given  in  each  to  foreign  judgments,  most  of 
them  are  susceptible  of  classification  under  one  of  three 
heads: 

(i.)   "Those  which  recognize  the  rule  of  reciprocity. 

(2.)  "  Those  which  refuse  to  recognize  foreign  judgments. 

(3.)  "Of  England  and  the  United  States  of  North  America, 
which  recognize,  without  regard  to  the  principle  of  reciprocity, 
the  authority  of  a  competent  foreign  judgment."* 

'  TV  Phillimore,  pp.  730,  73i-  Martens,  §§  94,  95  ;    Story,  §§  815- 

«  IV   Phillimore,   p.  729;    I    De  823. 

Martens,  liv.  iii.  chap.  iii.  §  94.  "  ^V  Phillimore,  pp.  731,  732- 
MV   Phillimore,  p.   728;    I   De 


PRIVATE    INTERNATIONAL    LAW  1 89 

References.  The  admirable  treatises  of  Wharton  and  Story  upon  the 
subject  of  "  Private  International  Law,"  or  the  "Conflict  of  Laws,"  both 
works  of  the  highest  authority,  practically  exhaust  the  subject  in  all  its 
departments.  Bar's  "  International  Law  "  is  a  standard  German  work 
upon  the  subject,  and  may  now  be  obtained  in  an  English  translation. 
Foelix,  "Traite  de  Droit  International  Prive  "  is  a  French  work  of  high 
authority.  The  fourth  volume  of  Phillimore  is  devoted  to  the  subject 
of  Domicile  and  Private  International  Law.  For  briefer  and  less  elabo- 
rate accounts,  see  Boyd's  Wheaton,  §§  78-92;  I  Halleck,  chap.  vii. ; 
Wharton,  "Commentaries  on  American  Law,"  chap.  v. ;  and  Brocher's 
"  Theorie  du  Droit  International  Prive,"  in  vols.  iv.  v.  of  the  Revue  de 
Droit  International. 


CHAPTER  VII 

THE   RIGHT   OF   LEGATION:    AMBASSADORS,  PUBLIC 
MINISTERS,  CONSULS,  CONSULAR  JURISDICTION 

Origin  of  the  Right.  The  right  of  legation  is  one  of  the 
oldest,  as  it  is  one  of  the  most  generally  sanctioned,  of  inter- 
national usages.  It  has  existed  from  the  earliest  times,  and 
among  all  peoples  of  whom  we  have  any  authentic  knowledge. 
It  is  recognized  and  practised  to  some  extent  even  by  barbar- 
ous nations  in  their  occasional  intercourse  with  each  other. 

As  nations  cannot  treat  directly  with  each  other,  it  follows 
that  intercourse  between  them  must  be  carried  on  by  means 
of  agents  or  intermediaries;  these  agents  are  called  ambassa- 
dors, envoys,  or  public  ministers.' 

The  practice  of  maintaining  public  ambassadors  at  foreign 
courts,  though  recognized  to  some  extent  in  Europe  at  an 
earlier  date,  did  not  become  general  until  about  the  middle  of 
the  seventeenth  century.  The  treaty  of  Westphalia,  which 
was  concluded  in  1648,  marked  an  important  epoch  in  Euro- 
pean history.     As  an  immediate  result  of  its  execution  the  in- 

'  "  But  nations  or  sovereign  states  sovereigns,  is  to  communicate  and 

do  not  treat  together  immediately;  treat  with  each  other  by  the  agency 

and  their  rulers,  or  sovereigns,  can-  of  procurators  or  mandatories — of 

not  well  come  to  a  personal  confer-  delegates  charged  with  their  com- . 

ence  in  order  to  treat  of  their  affairs,  mands,  and  vested  with  their  pow- 

Such    interviews  would   often   be  ers — thax.  is  to  so-y,  public  ministers. 

impracticable;     and,   exclusive   of  This  term,  in  its  more  extensive  and 

delays,   trouble,   expense,    and    so  general  sense,  denotes  any  person 

many  other   inconveniences,  it   is  intrusted  with  the  management  of 

rarely,  according  to  the  observation  public  affairs,  but  is  more  particu- 

of  Philip  de  Commines,  that  any  larly  understood  to  designate  one 

good  effect  could  be  expected  from  who  acts  in  such  capacity  at  a  for- 

them.     The  only  expedient,  there-  eign  court." — Vattel,  liv.  iv.  chap.  v. 

fore,  which  remains  for  nations  and  §  56. 


THE    RIGHT   OF   LEGATION  191 

fluence  of  the  Roman  Church  in  secular  matters  was  largely- 
reduced  in  importance,  and  the  principle  of  balance  of  pow- 
er was,  for  the  first  time,  generally  sanctioned  and  specially 
guaranteed.  As  a  consequence  the  foreign  relations  of  the 
different  European  states  rapidly  increased  in  volume  and 
intricacy,  and  the  necessity  of  establishing  permanent  lega- 
tions was  generally  recognized  and  acted  upon.  The  profes- 
sion of  diplomacy  soon  became  the  most  important  one  in 
which  an  individual  could  engage,  and  the  departments  of 
foreign  affairs  were  regarded  as  the  most  important  branches 
of  governmental  service,  demanding  in  their  administration 
ministers  of  the  highest  ability  and  the  widest  experience. 
The  position  assumed  by  the  profession  has  been  constantly 
maintained,  and  the  states  of  Europe  and  America  now  deem 
it  a  matter  of  the  first  consequence  to  be  ably  represented, 
not  only  near  the  courts  of  the  Christian  states,  but  also  at 
the  capitals  of  those  Eastern  nations  which,  as  yet,  but  im- 
perfectly recognize  the  sanctions  of  international  law." 

The  Right  of  Legation.  The  rigJit  of  sending  and  receiv- 
ing ambassadors  is  one  of  the  essential  attributes  of  a  sovereign 
state.  The  obligation  to  do  so  is  less  strong,  and  is  not  gener- 
ally regarded  as  a  matter  of  strict  right.  A  nation,  however, 
which  refuses,  without  good  reason,  to  receive  a  minister  from 
a  foreign  power  exposes  itself  to  retorsion  ;  and  a  state  would 
run  counter  to  the  tendencies  of  modern  civilization  which  re- 
jected or  refused  to  entertain  communications  from  a  state 
with  which  it  was  at  peace.^ 

The  power  of  sending  and  receiving  ambassadors  belongs 
also  to  dependent  states,  unless  its  exercise  is  expressly  for- 
bidden by  the  states  upon  which   they  are   dependent.      In 

'  Heffter,  §   199;   II  Ward's   In-  Inquiry  into  the  Foundations  and 

quiry,  p.   483;  Hosack,  pp.   2-6;  Histoiy  of   the   Law  of   Nations, 

Lawrence,   Int.  Law,  §§   141 -142;  pp.  477-507. 

Dana's  Wheaton,  §§  206-208.     For  '^  Vattel.liv.  iv.  chap.  v. ;  Heffter, 

an  account  of  the  origin  and  devel-  §  200  ;  Dana's  Wheaton,  §  206  ;  Law- 

opment  of  modern  diplomatic  insti-  rence,  §  144  ;  Bluntschli,  §§  159-169; 

tutions,  see  Nys,  Les  Origines  de  I  Halleck,  chap.  viii.  §§  i,  2. 
ia  Diplomatic,  and  vol.  i.  Ward's 


192  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

the  case  of  confederacies  the  right  belongs  to  each  of  the 
component  states,  unless  it  has  been  expressly  surrendered  by 
them  in  the  treaty  of  confederation. 

A  state,  though  willing  to  receive  an  ambassador  from  an- 
other, may,  for  good  reason,  decline  to  receive  a  particular 
person  in  that  capacity.  It  may  thus  decline  to  receive  one  of 
its  own  subjects,  or  a  former  subject  who  had  been  exiled  or 
who  had  gone  into  voluntary  exile,  or  a  person  of  doubtful  or 
immoral  character,  or  one  who  had  been  engaged  in  a  conspir- 
acy or  agitation  directed  against  the  government  to  which  he 
is  accredited  as  an  ambassador.'  "A  state  may  also  decline 
to  receive  ministers  whose  powers  are  incompatible  with  its 
constitution  or  public  policy.  For  this  reason  no  state  is  ob- 
liged to  receive  as  minister  the  legates  or  nuncios  of  the  pope. 
Their  powers  are  conferred,  either  expressly  or  tacitly,  by  ec- 
clesiastical laws,  and  an  attempt  to  enforce  them  may  bring 
the  papal  representative  into  collision  with  the  sovereign 
authority  of  the  state  upon  some  question  of  a  religious  char- 
acter." ' 

'  It  must  be  borne  in  mind  that  States,  on  the  ground  that,  for  per- 

an  envoy  is  ?i  person  as  well  as  the  sonal  or  political  reasons,  they  were 

abstract  representative  of  his  gov-  not  acceptable  to  the  government 

ernment,  and    that  it   is  the  pre-  of  the  state  to  which   it  was  pro- 

rogative  of  every  government  to  posed   to   accredit  them.    A  case 

require   that  those  with  whom    it  occurred  so  late  as  1885,  which  is 

deals  be  persona  grata,  and  to  de-  reported  in  the  Foreign  Relations 

cide  the  question  for  itself.     This  of  the  United  States  for  that  year, 

government  has   on  several  occa-  In  this  case,  although  the  incident 

sions  availed  itself  of  this  personal  terminated  with  the  resignation  of 

right,  without  thereby  being  sup-  the  minister  to  whose  reception  the 

posed  to  reflect  on  the  representa-  objection  had  been  taken,  the  mat- 

tive  character  of  the  person  himself,  ter  was  presented  to  Congress  by 

and  still   less  upon  the  collective  the  President  in  his  annual  mes- 

representativ^e  character  of  his  as-  sage,  and    the  post  remained  un- 

sociates. — I    Dig.    Int.   Law,  §  82  ;  filled  for  a  considerable  period  of 

Heffter,  §  200;  Vattel,  liv.  iv.  chap.  time. — I  Dig.  Int.  Law,  §§  84,   89; 

V.  §66;  I  Halleck,  p.  224;  Hall,  §  Foreign    Relations  of  the    LTnited 

98  ;  Lawrence,  §  146;  Dana's  Whea-  States,  1885,  pp.  12,  48,  57,  683,  703, 

ton,   §  210;    Martens,    Man.    Dip.  710,  752,  757;  1888,  Ibid.  pp.  1667, 

chap.  i.  §  6;  Bluntschli,  §  164.    For-  1729. 

eign  states   have    declined  to    re-  ^  Heflter,  §  200 ;  Hall,  §  98 ;  Law- 

ceive  particular  persons  as  diplo-  rence,  §  146. 
matic  representatives  of  the  United 


THE    RIGHT   OF    LEGATION  I93 

From  what  has  been  said  in  respect  to  the  rule  that  a  gov- 
ernment is  not  required  to  receive  a  particular  person  in  a 
diplomatic  capacity,  it  follows  that  the  recall  of  a  minister, 
whose  conduct  has  been  such  as  to  render  his  presence  no 
longer  acceptable,  may  be  requested,  or  even  demanded,  by 
the  government  to  which  he  is  accredited  ;  indeed,  if  the  oc- 
casion be  one  of  sufficient  emergency,  it  may  dismiss  such  an 
offender,  and,  if  need  be,  expel  him  from  its  territory/ 

It  has  already  been  explained  that  the  government  of  a 
state  is  the  organ  through  which  it  communicates  with  other 
powers.  In  such  intercourse  with  other  states  a  government 
may  communicate  directly,  through  its  ministry  of  foreign  af- 
fairs, or  through  ambassadors  selected  by  the  proper  govern- 
mental authority  in  accordance  with  its  constitution  and  laws. 

Classification  of  Diplomatic  Agents.  Heffter  makes  the 
following  classification  of  these  agents  of  intercourse: 

(a.)  Public  ministers.  These  are  clothed  with  a  public  and 
official  character,  and  are  sent  by  the  sovereign  authority  of  a 
state  to  a  foreign  government,  as  its  general  diplomatic  repre- 
sentatives, or  to  undertake  special  negotiations.  They  may 
have  either  a  permanent  or  temporary  character. 

(d.)  Diplomatic  agents,  charged  with  similar  duties,  but  with- 
out public  or  official  character. 

(c.)  Commissioners,  appointed  for  special  purposes,  as  to  lo- 
cate and  mark  boundaries,  to  adjust  international  differences, 
or  to  carry  into  effect  special  clauses  of  treaties.  The  mem- 
bers of  this  class  do  not  communicate  directly  either  with  a 
foreign  sovereign  or  with  his  ministers. 

'  The  Government  of  the  United  ton  (ed.  of  1863),  p.  437  ;  II  Schou- 

States  has  felt  obliged,  upon  more  ler's  History  of  the  United  States, 

than  one  occasion,  to  take  action  p.  108  ;  II  Madison's  Writings,  pp. 

with  a  view  to  expel,  or  secure  the  422,  444,449,   451,   453,   469,   474. 

recall,    of    an    offending   minister.  The    correspondence    in    relation 

For  references  to  such  cases,  see  I  to  the  most  recent  case  of  expul- 

Dig.  Int.  Law,  §§84,  106;  VII  Opin-  sion  —  that  of  Lord  Sackville,  the 

ions  of  Attorney-General,  p.  367  ;  I  ambassador  of  Great  Britain  —  see 

A mer.  State  Papers  (Foreign  Rela-  United   States   Foreign   Relations, 

tions),   pp.  141,  709;   III  Ibid.  pp.  1888,  pp.  1667-1730.    See  also  I  Dig. 

3i8fl,352flf,  355ff ;  Lawrence's  Whea-  Int.  Law,  §  84. 
13 


194  THE   ELEMENTS    OF   INTERNATIONAL  LAW 

{d.)  Consuls  charged  with  the  supervision  of  commercial  in- 
terests.' 

Rank  of  Ambassadors.  The  absence  of  a  well-defined 
rule  by  which  to  determine  questions  arising  as  to  the  powers 
and  dignities  of  the  different  classes  of  diplomatic  agents  gave 
rise  to  great  confusion,  especially  at  the  beginning  of  the  pres- 
ent century.  To  remedy  this  the  representatives  of  the  Eu- 
ropean powers  assembled  in  Congress  at  Vienna,  in  1815, 
agreed  upon  a  classification  of  public  ministers,  and  recom- 
mended the  preparation  and  adoption,  in  each  state,  of  rules 
to  regulate  their  precedence.  The  arrangement  proposed  at 
Vienna,'^  as  modified  by  the  action  of  the  Congress  of  Aix-la- 
Chapelle,'  in  181 8,  has  received  such  general  sanction  as  to 
entitle  it  to  consideration  as  a  rule  of  international  law.  In 
accordance  with  its  provisions  diplomatic  agents  are  now  ar- 
ranged into  four  classes  : 

{a)  Ambassadors,  ordinary  and  extraordinary,  legates  and 
nuncios. 

{b.)  Envoys,  ministers,  or  other  diplomatic  agents  accredited 
to  sovereigns, 

{c)  Ministers  resident,  accredited  to  sovereigns. 

{d.)  Charges  d'affaires,  and  other  diplomatic  agents  ac- 
credited to  ministers  of  foreign  affairs  (whether  bearing  the 
title  of  minister  or  not),  and  consuls  charged  with  diplomatic 
duties.* 

Ambassadors  of  the  first  class  are  alone  clothed  with  the 
representative  character  ;  they  have  special  prerogatives,  and 
are  entitled  to  special  honors,  as  they  represent  the  sovereign 
in  his  personal  character.  Members  of  the  other  classes  rep- 
resent his  affairs  only.  In  general  the  immunities  to  which 
ministers  are  entitled  depend  upon  their  letters  of  credence. 

'  Heffter,  §  201  ;    Lawrence,  Int.  ^  Lawrence,  §  143;  Dana's  Whea- 

Law,   §    143;    Dana's  Wheaton,    §  ton,  §  211,  note ;  Heffter,  §  208. 

211,  note;  Hall,  §§  96,  98.  *  Bluntschli,  §  171 ;  Dana's  Whea- 

'^  Lawrence,  §  143  ;  Dana's  Whea-  ton,  §  211,  note;  Hall,  p.  298  ;  Heff- 

ton,  §  211,  note;  Heffter,  §  208;  I  ter,  §§  208,  219  ;   I   Dig,  Int.  Law, 

Dig.  Int.  Law,  §  88 ;  Vattel,  liv.  iv.  §  88. 
chap.  vi.  §§  69-71 


THE    RIGHT    OF   LEGATION  I95 

Those  accredited  to  sovereigns  are  entitled  to  the  immunities 
of  ambassadors,  those  accredited  to  ministers  of  foreign  affairs 
are  not.' 

Titles  of  Ambassadors.  The  titles  of  ambassadors  are 
regulated  by  the  municipal  laws  of  the  states  which  they 
represent.  The  terms  ordinary  and  extraordinary  at  first 
determined  the  character  of  the  diplomatic  employment  of 
the  ministers  to  whom  they  were  applied.  They  have  now  no 
special  meaning.  Legates  and  nuncios  are  the  representatives 
of  the  pope  at  foreign  courts.  Legates  have  the  rank  of  car- 
dinal, and  represent,  to  a  certain  extent,  his  spiritual  as  well 
as  his  temporal  authority.  Nuncios  represent  him  in  the  latter 
capacity  only.  In  determining  the  rank  and  titles  of  ministers 
sent  to  foreign  courts,  the  principle  of  reciprocity  prevails,  and 
a  state  sends  to  another  a  representative  of  the  same  class  that 
it  receives.  Several  ministers  may  be  maintained  at  the  same 
court,  and  a  single  person  may  represent  a  state  at  several 
courts.* 

Manner  of  Sending  and    Receiving  Ambassadors.     To 

'  Article  4  of  the  "  Reglement  sur  been  accredited  to  and  received  by 

le  rang  entre   les   agens  diploma-  some  previous  intruded,  usurping, 

tiques"  adopted  at  the  Congress  of  illegitimate,  and    odious    dynasty 

Vienna  in  the  protocol  of  March  19,  or  government,  the  recognition  of 

181 5,   contained   the    requirement  whose  previous  rank  would  there- 

that    "diplomatic   employes   shall  fore  implicate  the  legitimate   dy- 

take  rank,   as  regards  each  other,  nasty  or  government  in  quasi  ad- 

in  each  class  from  the  date  of  the  mission  of  such  previousassumption 

official  notification  of  their  arrival."  or  intrusion,  and  would  also  be  prej- 

It  was  held,  in  a  discussion  respect-  udicial  to  the  rights  of  such  foreign 

ing  the  application  of  this  article  governments  as  had  refused  to  rec- 

which  arose  among  the  diplomatic  ognize  such  usurpers  or  intruders, 

representatives   accredited   to  the  and  had  done  so  in  the  interest  of 

court   of  Spain   in   1875,  that  the  legitimate  and  regular  government, 

precedence  of  diplomatic  employes  The  weight  of  opinion  seemed  to 

did  not  depend  upon  the  date  of  be,   however,  that  inquiries  as  to 

actual  presentation,  but  upon  the  legitimacy  should  be  disregarded, 

date  of  official  notification  of  readi-  and  the  question  of  recognition  be 

ness  to  be  presented.     It  was  con-  restricted  to  the  fact  of  the  exist- 

tended,  however,  that  the  term  "ar-  ence  of  the  government  in  every 

rivee,"  as  used  in  the  article,  was  case.  — United  States  Foreign  Reia- 

restricted  in  its  application  to  the  tions,  1875,  p.  1105. 

case  of  each  government;  since  a  ^  Lawrence,  Int.  Law, §§  141-144; 

minister  holding  over  might  have  Bluntschli,§  172;  Heffter,  §§201,208. 


196  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

enable  a  minister  to  be  received  in  that  character,  he  is  pro^ 
vided  by  the  sovereign  or  other  chief  executive  authority  of 
his  own  state  with  two  important  papers,  called  his  Letter  of 
Credence  and  Full  Power.  The  Letter  of  Credence  is  addressed 
to  the  sovereign  to  whom  he  is  accredited.  It  contains  his 
name  and  title,  confers  upon  him  the  diplomatic  character, 
and  serves  to  identify  him  as  a  public  minister,  but  does  not 
authorize  him  to  enter  upon  any  particular  negotiation.'  The 
Full  Power  authorizes  him  to  act  as  the  general  diplomatic 
representative  of  his  government  at  the  court  to  which  he  is 
accredited.  It  describes  the  limits  of  his  authority  to  negoti- 
ate, if  such  there  be,  and  upon  it  the  validity  of  his  acts  as  a 
minister  largely  depends.  Ambassadors  who  represent  states 
at  Congresses  and  Conferences,  or  as  members  of  Internation- 
al Courts,  or  Boards  of  Arbitration,  are  not  usually  provided 
with  Letters  of  Credence.  They  bear  Full  Powers,  under  the 
authority  of  which  they  act,  and  copies  of  them  are  exchanged 
among  the  different  members  of  the  board  or  conference.' 

Reception  of  Ambassadors.  An  ambassador  or  minister 
accredited  to  a  sovereign,  upon  arriving  at  his  station,  for- 
wards a  copy  of  his  Letter  of  Credence  to  the  Minister  of 
Foreign  Affairs,  and  requests  an  audience  with  the  sovereign. 
At  this  audience,  which  may  be  either  public  or  private,  his 
Letter  of  Credence  is  presented,  and  complimentary  speeches 
are  usually  exchanged."  He  may  then  enter  upon  the  perform- 
ance of  his  duties. 

1  "Among  the  several  characters  solely  only  in  the  quality  attributed 

established  by  custom,  it  rests  with  to  him   in  his  credentials.      They 

the  sovereign   to   determine   with  are,  as  it  were,  his  general  letter  of 

what  particular  one  he  chooses  to  attorney,  his  mandate  patent,  nian- 

invest  his  minister;  and  he  makes  dattini   jnautfcstiait."  —\s.\Xt\,   Hv. 

known  the  minister's  character  in  iv.  chap.  vi.  §  76. 

the  credentials  which  he  gives  him  ^  II  De  Martens,  pp.  84-86;  Heflf- 

forthe  sovereign  to  whom  he  sends  ter,  §§  209,  210;   Bluntschli,  §§  183- 

him.     Credentials  are  the   instru-  190;    Lawrence,  §  147;  I   Dig.  Int. 

ment  which  authorizes  and  estab-  Law,  §  85;  I  Twiss,  §§  212-216. 

lishes  the  minister  in  his  character  ^  For  many  years  the  Chinese  em- 

with  the  prince  to  whom  they  are  peror  refused  to  accord  to  foreign 

addressed.     If  the  prince  receiv'es  ambassadors  and  ministers  accred- 

the  minister,  he  can  receive  him  ited  to  his  court  the  personal  au- 


THE    RIGHT   OF    LEGATION  I97 

Duties  of  Ambassadors.  The  duties  of  a  public  minister 
are  not  susceptible  of  exact  description.  Some  of  them  are 
regulated  by  international  law,  and  some  by  the  municipal 
law  of  the  ambassador's  state.  They  depend  upon  the  impor- 
tance of  the  power  to  which  he  is  accredited,  upon  the  amount 
of  intercourse,  commercial  and  otherwise,  existing  between  it 
and  the  state  which  he  represents,  and,  to  some  extent,  upon 
the  difference  in  their  systems  of  government.  He  is  expected 
to  keep  his  government  informed  upon  all  questions  of  general 
interest,  and  to  advise  it  of  any  change  in  the  government,  con- 
stitution, or  state  policy  of  the  country  in  which  he  is  resident. 
It  is  also  his  duty  to  make  proper  representations  in  behalf  of 
subjects  of  his  own  state  who  may  stand  in  need  of  protection, 
to  secure  a  remedy  for  injuries  which  they  may  have  received, 
or,  in  case  they  exceed  his  jurisdiction,  to  inform  his  govern- 
ment fully  of  the  facts  in  each  case  in  order  that  proper  meas- 
ures of  redress  may  be  taken.  In  general  he  represents  the 
interests  of  his  state,  and  those  of  its  individual  subjects,  in 
the  country  to  which  he  is  accredited.  That  he  may  do  so 
effectively  at  all  times,  and  under  all  circumstances,  he  is 
bound  by  every  consideration  of  honor  and  duty  to  scrupu- 
lously abstain  from  all  interference  in  the  internal  affairs  of  the 
state  to  which  he  is  accredited.' 

Diplomatic  Language.  Every  state  has  a  right  to  employ 
its  own  language  in  its  communications  to  other  powers,  and 

dience  to  which  by  long  established  1873,  part  i.  pp.  149-201.     See  also 

usage  they  believed  themselves  en-  Lawrence,  Int.  Law,  §  147;  I  Twiss, 

titled.    After  some  preliminary  cor-  §§212-216. 

respondenceonthepartofthepow-  '  A  foreign  minister  should  cor- 

ers  interested  an  understandingwas  respond  with  the  Secretary  of  State 

reached  by  their  representatives  at  on  matters  which  interest  his  na- 

Pekin.andthematterofanaudience  tion,  and  not  through  the  press  of 

was  again  presented  to  the  Chinese  our  country.     He  has  no  authority 

Government  in  a  joint  note  submit-  to  communicate  his  sentiments  to 

ted  to  Prince  Kung  the  prime-min-  the  people  of  the  United  States  by 

ister  of  China.     After  considerable  publication  in  manuscript  or  print, 

discussion  the  request  of  the  for-  —I  Opinions  of  Attorney-General, 

eign  ministers  was  acceded  to,  and  p.  74;  Heffter,  pp.  425-432;  I  Dig. 

a  "personal  audience  with  the  em-  Int.  Law,  §§  89-91,  io7-io7b;  Klii- 

peror  was  had  on  June  29,  1873.—  ber,  §§  197-201. 
United  States  Foreign   Relations, 


198  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

must  recognize  a  corresponding  right,  on  the  part  of  other 
states,  to  a  similar  use  in  all  communications  addressed  to  it- 
self. Until  the  beginning  of  the  eighteenth  century  Latin  was 
in  general  use  as  a  convenient  neutral  language.  The  treaties 
of  Nimeguen,  Ryswick,  and  Utrecht,  and  the  Quadruple  Al- 
liance, concluded  at  London  in  1788,' were  drawn  up  in  Latin. 
The  official  acts  of  the  Holy  See  are  still  written  in  that  lan- 
guage. French,  however,  has  gradually  displaced  Latin  as  the 
diplomatic  language,  and,  to  a  great  extent,  still  retains  that 
character.  The  treaties  of  Vienna,  in  181 5,  those  of  1833, 
concerning  the  separation  of  Belgium  from  Holland,  and  the 
treaty  of  Paris,  in  1856,  were  drawn  up  in  French." 

The  Functions  of  Ambassadors,  how  Suspended  and 
Terminated.  The  functions  of  an  ambassador,  and  conse- 
quently his  official  character,  may  be  suspended,  and  may,  or 
may  not,  be  terminated  : 

(a.)  As  a  result  of  some  difference  or  misunderstanding  be- 
tween the  two  powers,  not  resulting  in  war. 

(d.)  Upon  the  occurrence  of  important  political  events,  which 
render  the  continuance  of  his  mission  improbable  ;  as  a  sudden 
or  violent  change  in  the  constitution  or  form  of  government,  in 
either  state.  Such  a  suspension  continues  until  it  is  removed, 
by  proper  authority,  in  the  state  in  which  it  originated.^ 

A  mission  may  be  terminated  : 

(a.)  By  the  death,  or  by  the  voluntary  or  constrained  abdica- 
tion of  one  or  both  sovereigns.  This,  however,  only  in  case  the 
ambassador  represents  the  sovereign  in  his  personal  capacity.^ 

'  Heffter,  p.  433.  is  permanent  and  continuous,  with- 
"11  Phillimore,  §  43;  Heffter,  out  regard  to  the  governing  person, 
§  235;  II  De  Martens,  §  179;  I  Or-  and  there  is  no  interruption  of  the 
tolan,  p.  loi  ;  Dana's  Wheaton,  authority  or  renewal  of  the  creden- 
§  158;  Kliiber,  §  114.  tials  of  their  public  ministers  on  a 
^  According  to  the  public  law  of  change  of  President  for  whatever 
the  monarchies  of  Europe,  the  au-  cause,  provided  such  President  con- 
thority  of  ministers,  and  perhaps  tinues  to  represent  and  exercise  the 
of  international  commissioners,  eX'  appointing  power  of  the  govern- 
pires  on  the  death,  deposition,  or  ment. — VII  Opinions  of  Attorney- 
abdication  of  the  prince;  but  not  General,  p.  582;  Heflter,  p.  414 ;  I 
so  as  between  the  American  repub-  Dig.  Int.  Law,  §  87. 
lies,  in  which  the  executive  power 


THE    RIGHT   OF    LEGATION  1 99 

{b)  By  the  withdrawal,  or  cancellation,  of  his  Letters  of 
Credence  and  Full  Power. 

(<;.)  By  his  recall  at  the  outbreak  of  war;  or  upon  the  com- 
pletion of  the  duty  which  he  was  appointed  to  perform,  the 
expiration  of  his  term  of  office,  or  upon  his  promotion  or  re- 
moval to  another  sphere  of  duty. 

id.)  By  his  removal,  which  may  be  voluntary,  or  forced  by 
the  government  to  which  he  is  sent. 

{e)  By  death.' 

When  the  functions  of  an  ambassador  cease  for  any  cause 
his  departure  is  attended  by  formalities  similar  to  those  ob- 
served at  his  reception.  He  requests  an  audience  with  the 
sovereign,  at  which  he  presents  his  letters  of  recall.  If  normal 
relations  exist  between  the  two  governments,  formal  expres- 
sions of  regret  are  exchanged  at  this  interview.  In  strictness 
his  functions  and  privileges  cease  when  his  letter  of  recall  has 
been  presented.  Through  courtesy,  however,  the  immunities 
which  he  has  enjoyed  during  his  period  of  residence  are  ex- 
tended to  him  until  he  passes  the  frontier  of  the  state  on  his 
homeward  journey. 

The  Privileges  and  Immunities  of  Ambassadors.  To  the 
successful  and  efficient  performance  of  an  ambassador's  duties 
the  most  complete  personal  independence  and  freedom  of  ac- 
tion are  necessary.  This  immunity  lies  at  the  foundation  of 
the  system,  and  has  been  most  jealously  guarded  and  pre- 
served since  the  beginning  of  modern  diplomacy.  It  was  rec- 
ognized by  the  nations  of  antiquity,  and  is  insisted  upon  as  a 
necessary  preliminary  to  intercourse  with  those  Eastern  coun- 
tries whose  standards  of  civilization  differ  so  widely  from  our 
own.'     It  is  illustrated  by  the  swiftness  with  which  nations 

ni  De  Martens,  p.  i6o;  Blunt-  —is    not    the    only    privilege     he 

schli,  §§  227-240 ;  Heffter,  §  224;  I  enjoys;    the  universal    practice  of 

Halleck,  pp.  304-309;    Kliiber,  §§  nations   allows  him,  moreover,  an 

227-230;  II  Phillimore,  §§  237-242.  entire  independence  of  the  juris- 

''"The  inviolability  of  a  public  diction  and  authority  of  the  state 

minister  —  or    the    protection    to  in  which  he   resides.  *  *  *  It  is  a 

which  he  has  a  more  sacred  and  matter  of  no  small  importance  that 

particular    claim    than    any    other  he  have  no  snares  to  apprehend— 

person,  whether  native  or  foreigner  that  he  is  not  liable  to  be  diverted 


200 


THE   ELEMENTS   OF  INTERNATIONAL   LAW 


have  always  resented  offences  against  the  persons  of  their 
ministers  and  diplomatic  agents.' 

The  Principle  or  Fiction  of  Exterritoriality.  From  the 
fact  of  the  inviolability  of  an  ambassador's  person,  \.\vq  fiction 
of  exterritoriality  has  been  deduced  to  account  for  and  explain 
the  various  exemptions  which  public  ministers  enjoy  in  for- 
eign countries.  This  principle  has  been  defined,  and  its  limita- 
tions have  been  pointed  out,  elsewhere.* 

This  immunity  is  both  personal  and  territorial.  Personal  in 
that  it  involves  an  exemption  of  his  person  from  the  civil  and 
criminal  jurisdiction  of  the  state  in  which  he  is  resident ;  ter- 
ritorial in  that  his  residence  or  hotel  is  presumed  to  be  a  part 
of  the  territory  of  the  state  which  he  represents.  In  strictness 
his  privileges  and  immunities  become  effective  when  he  enters 


from  his  functions  by  any  chican- 
ery— that  he  have  nothing  to  hope, 
nothing  to  fear,  from  the  sovereign 
to  whom  he  is  sent.  In  order,  there- 
fore, to  the  success  of  his  ministry, 
he  must  be  independent  of  the  sov- 
ereign authority  and  of  the  juris- 
diction of  the  country,  both  in  civil 
and  criminal  matters." — Vattel,  liv. 
iv.  chap.  vii.  §  92 ;  Kliiber,  §  203 ; 
Wheaton,  §  224;  I  Dig.  Int.  Law, 
§§  92-94;  Heffter,  §  212. 

The  act  of  February  i,  1876 
(19  Stat,  at  Large,  p.  2),  contains 
the  requirements  that,  in  the  sev- 
eral provisions  of  the  Revised  Stat- 
utes relating  to  the  privileges  and 
immunities  of  ambassadors  and 
public  ministers,  the  word  "  min- 
ister" shall  be  understood  to  mean 
the  person  invested  with,  and  ex- 
ercising, the  principal  diplomatic 
functions.  The  word  "consul" 
shall  be  understood  to  mean  any 
person  invested  by  the  United 
States  with,  and  exercising,  the 
functions  of  consul-general,  vice 
consul-general,  consul,  or  vice- 
consul. 

'  An  affront  to  an  ambassador  is 
just  cause  for  national  displeasure, 


and,  if  afforded  by  an  individual 
citizen,  satisfaction  is  demandable 
of  his  action.  It  is  usual  for  na- 
tions to  complain  of  insults  to  their 
ambassadors,  and  to  require  the 
parties  to  be  brought  to  punish- 
ment.—  Spanish  minister's  case,  I 
Opinions  of  Attorney -General,  p. 
71,  Lee  (1797).  An  ambassador  or 
other  representative  of  one  nation 
residing  in  another  is  entitled  to  be 
treated  with  respect,  and  especial- 
ly ought  not  to  be  libelled  by  any 
of  the  citizens.  If  he  commits  any 
offence,  it  belongs,  in  our  country, 
to  the  President  to  take  notice  of 
it,  and  not  to  any  individual  citi- 
zen.— Ibid.  Any  malicious  publi- 
cation tending  to  render  another 
ridiculous,  or  to  expose  him  to 
public  contempt  and  hatred,  is  a 
libel ;  and  in  the  case  of  a  foreign 
public  minister  the  municipal  law 
is  strengthened  by  the  law  of  na- 
tions, which  secures  the  minister  a 
peculiar  protection,  not  only  from 
violence  but  also  from  insult. — Case 
of  British  minister,  I  Ibid.  p.  52, 
Bradford  (1794). 
^  See  pp.  74-90. 


THE    RIGHT   OF   LEGATION 


20 1 


upon  the  performance  of  his  diplomatic  duties.  It  is  usual, 
however,  to  recognize  them  as  existing  so  soon  as  he  enters 
the  territory  of  the  state  to  which  he  is  accredited.  The  ex- 
emption which  an  ambassador  enjoys  extends  to  his  family,  to 
the  secretaries  and  other  attache's  and  employees  of  the  lega- 
tion, and  to  his  domestic  servants.  Some  question  has  arisen 
as  to  the  precise  extent  of  this  immunity  in  the  case  of  ser- 
vants, especially  when  they  are  natives  of  the  country  in  which 
the  minister  is  resident.'  Unquestionably  any  privilege  which 
a  servant  may  have  "  is  not  the  privilege  of  the  servant  him- 
self, but  of  the  ambassador,  and  is  based  on  the  ground  that  the 
arrest  of  the  servant  might  interfere  with  the  comfort  or  state 
of  the  ambassador."^ 


•  Dana's  Wheaton,  §§  224-243, 
notes  128-130. 

'^  II  Phillimore,  p.  227.  The  laws 
of  the  United  States  which  are  in- 
tended to  secure  the  privileges  and 
immunities  of  ambassadors  and 
public  ministers  will  be  found  in 
the  following  sections  of  the  Re- 
vised Statutes: 

Sec.  4062.  Every  person  who 
violates  any  safe-conduct  or  pass- 
port duly  obtained  and  issued  un- 
der authority  of  the  United  States, 
or  who  assaults,  strikes,  wounds, 
imprisons,  or  in  any  other  manner 
offers  violence  to  the  person  of  a 
public  minister,  in  violation  of  the 
law  of  nations,  shall  be  impris^ 
oned  for  not  more  than  three 
years,  and  fined,  at  the  discretion 
of  the  court. 

Sec.  4063.  Whenever  any  writ  or 
process  is  sued  out  or  prosecuted 
by  any  person  in  any  court  of  the 
United  States,  or  of  a  state,  or  by 
any  judge  or  justice,  whereby  the 
person  of  any  public  minister  of 
any  foreign  prince  or  state,  author- 
ized and  received  as  such  by  the 
President,  or  any  domestic  or  do- 
mestic servant  of  any  such  minister, 
is  arrested  or  imprisoned,  or  his 
goods  or  chattels  are  distrained. 


seized,  or  attached,  such  writ  or 
process  shall  be  deemed  void. 

Sec.  4064.  Whenever  any  writ  or 
process  is  sued  out  in  violation  of 
the  preceding  section,  every  person 
by  whom  the  same  is  obtained  or 
prosecuted,  whether  as  party  or  as 
attorney  or  solicitor,  and  every  of- 
ficer concerned  in  executing  it, 
shall  be  deemed  a  violator  of  the 
law  of  nations,  and  a  disturber  of 
the  public  repose,  and  shall  be  im- 
prisoned for  not  more  than  three 
years,  and  fined  at  the  discretion  of 
the  court. 

Sec.  4065.  The  two  preceding 
sections  shall  not  apply  to  any  case 
where  the  person  against  whom  the 
process  is  issued  is  a  citizen  or  in- 
habitant of  the  United  States,  in 
the  service  of  a  public  minister,  and 
the  process  is  founded  upon  a  debt 
contracted  before  he  entered  upon 
such  service  ;  nor  shall  the  preced- 
ing section  apply  to  any  case  where 
the  person  against  whom  the  proc- 
ess is  issued  is  a  domestic  servant 
of  a  public  minister,  unless  the 
name  of  the  servant  has,  before 
the  issuing  thereof,  been  registered 
in  the  Department  of  State,  and 
transmitted  by  the  Secretary  of 
State  to  the  marshal  of  the  Dis- 


205 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


Immunity  from  Criminal  Jurisdiction.  As  respects  crim- 
inal jurisdiction,  an  ambassador  is  exempt  from  criminal  pros- 
ecution, of  every  sort,  during  the  entire  period  of  his  residence 


trict  of  Columbia,  who  shall  upon 
receipt  thereof  post  the  same  in 
some  public  place  in  his  ofhce. 

Sec.  4066.  All  persons  shall  have 
resort  to  the  list  of  names  so  post- 
ed in  the  marshal's  of!ice,  and  may 
take  copies  without  fee.  —  See  also 
I  Dig.  Int.  Law,  §§  92,  93 ;  Foreign 
Relations  of  the  United  States, 
1879,  pp.  374,  375- 

The  laws  of  the  United  States 
which  punish  those  who  violate  the 
privileges  of  a  foreign  minister  are 
equally  obligatory  on  the  state 
courts  as  upon  those  of  the  United 
States,  and  it  is  equally  the  duty 
of  each  to  quash  the  proceedings 
against  any  one  having  such  priv- 
ileges.— Ex  parte  Cabrera,  I  Wash- 
ington, p.  232.  The  injured  party 
may  seek  his  redress  in  either 
court  against  the  aggressor,  or  he 
may  prosecute  under  the  twenty- 
sixth  section  of  the  law.  —  Ibid. 
The  mode  of  redress  for  a  per- 
son privileged  from  arrest  when 
arrested  is  by  motion  to  the 
court  from  which  the  process  is- 
sued. —  Lyell  vs.  Goodwin,  4  Mc- 
Lean, 29.  For  injuries  done  by 
private  persons  to  the  representa- 
tives of  foreign  governments,  the 
Government  of  the  United  States 
affords  redress  through  its  judicial 
tribunals.  The  Executive  Depart- 
ment has  no  power  to  redress  such 
injuries. — IX  Opinions  of  Attorney- 
General,  p.  7.  The  certificate  of 
the  Secretary  of  State,  dated  sub- 
sequently to  the  assault  and  bat- 
tery, is  the  best  evidence  to  prove 
the  diplomatic  character  of  a  per- 
son accredited  as  a  minister  by  the 
Government  of  the  United  States. 
—  The  United  States  vs.  William 
Liddle,  2  Washington,  205.  An 
indictment  under  the  act  of  1790 


(I  Stat.  p.  1 18;  R.  S.  §  4062),  for  of- 
fering violence  to  the  person  of  a 
public  minister  is  not  a  case  "af- 
fecting ambassadors  or  other  pub- 
lic ministers  and  consuls,"  within 
the  second  section  of  the  third  ar- 
ticle of  the  Constitution. — United 
States  vs.  Ortega,  1 1  Wheaton,  467. 
Any  malicious  publication  tending 
to  render  another  ridiculous,  or  to 
expose  him  to  public  contempt  and 
hatred,  is  a  libel ;  and  in  the  case 
of  a  foreign  public  minister  the 
municipal  law  is  strengthened  by 
the  law  of  nations,  which  secures 
the  minister  a  peculiar  protection, 
not  only  from  violence  but  also 
from  insult.  —Case of  British  min- 
ister, I  Opinions  of  Attorney-Gen- 
eral, p.  52,  Bradford  (1794).  An  af- 
front to  an  ambassador  is  just  cause 
for  national  displeasure,  and,  if  of- 
fered by  an  individual  citizen,  sat- 
isfaction is  demandable  of  his  na- 
tion. It  is  usual  for  nations  to 
complain  of  insults  to  their  am- 
bassadors, and  to  require  the  par- 
ties to  be  brought  to  punishment. 
— I  Opinions  of  Attorney-General, 
p.  71.  An  ambassador  or  other 
representative  of  one  nation  resid- 
ing in  another  is  entitled  to  be 
treated  with  respect,  and  especially 
ought  not  to  be  libelled  by  any  of 
the  citizens.  If  he  commits  any 
offence,  it  belongs,  in  our  country, 
to  the  President  to  take  notice  of 
it,  and  not  to  any  individual  citi- 
zen.— Ibid.  The  arrest  (of  servants 
of  public  ministers)  is  regulated  by 
act  of  Congress ;  entering  a  public 
minister's  house  to  serve  an  execu- 
tion will  either  be  absorbed  in  the 
arrest,  as  being  necessarily  associ- 
ated with  it,  if  that  be  found  crim- 
inal, or,  if  an  arrest  be  admissible, 
must  be  punished,  if  at  all,  under 


THE    RIGHT   OF   LEGATION 


203 


at  a  foreign  court.  A  crime  committed  against  the  person  of 
an  ambassador,  except  in  the  way  of  self-defence,  is  given  an 
aggravated  character,'  and  is  punished  with  exceptional  sever- 


the  law  of  nations.  —  Ibid.  p.  26. 
The  arrest  of  the  domestic  servant 
of  a  public  minister  is  declared  il- 
legal by  the  act  concerning  crimes 
(I  Stat.  p.  117;  R.  S.  §  4063).  All 
process  for  the  purpose  is  annulled, 
and  the  persons  concerned  in  the 
process  are  liable  to  fine  and  im- 
prisonment.—  Case  of  Van  Berc- 
kel's  servant,  I  Opinions  of  Attor- 
ney-General, p.  26,  Randolph(i792). 
If,  however,  the  domestic  be  a  citizen 
or  inhabitant  of  the  United  States, 
and  shall  have  contracted,  prior  to 
his  entering  into  the  service  of  the 
minister,  debts  still  unpaid,  he  shall 
not  take  the  benefit  of  the  act.  — 
Ibid.  Nor  shall  any  person  be  pro- 
ceeded against  under  the  act  for 
such  arrest,  unless  the  name  of  the 
domestic  be  registered  in  the  Secre- 
tary of  State's  office  and  transmit- 
ted to  the  marshal  of  the  district  in 
which  Congress  shall  reside. — Ibid. 
Domestic  servants  of  a  foreign  min- 
ister are  not  liable  to  the  ordinary 
tribunals  of  the  country  for  mis- 
demeanors.— United  States  vs.  La- 
fontaine,  4  Cranch,  Cir.  Ct.  173. 
Any  person  who  executes  process 
on  a  foreign  minister  is  to  be 
deemed  an  officer  under  section  26 
of  the  act  of  1790  (I  Stat.  p.  117; 
R.  S.  §  4064.)  —  United  States  vs. 
Benner,  Baldwin,  234.  To  support 
an  indictment  under  this  law  it  is 
not  necessary  that  the  defendant 
should  know  the  person  arrested 
to  be  a  foreign  minister. — Ibid.  A 
foreign  minister  cannot  waive  his 
privileges  or  immunities;  his  sub- 
mission or  consent  to  an  arrest  is 
no  justification. — Ibid.  An  assault 
committed  by  him  may  be  repelled 
in  self-defence,  but  does  not  justify 
an  arrest  on  process. —  Ibid.  An 
attache  to  a  foreign  legation  is  ^ 


public  minister  within  the  act  of 
Congress. — Ibid.  A  certificate  by 
the  Secretary  of  State,  under  seal 
of  office,  that  a  person  has  been 
recognized  by  the  Department  of 
State  as  a  foreign  minister,  is  full 
evidence  that  he  has  been  author- 
ized and  received  as  such  by  the 
President  of  the  United  States. — 
Ibid.  In  England  the  statute  mak- 
ing process  against  ambassadors 
and  public  ministers  void  was 
passed  after  the  arrest  of  the  Rus- 
sian ambassador  for  debt.— 7  Anne, 
chap.  12,  §  3.  It  has  been  held  in 
England  that  the  privilege  oper- 
ates to  protect  the  ambassador  to 
the  extent  of  preventing  him  from 
being  proceeded  against  in  a  man- 
ner that  may  ultimately  result  in 
coercion  in  respect  to  his  {)erson, 
or  the  seizure  of  such  of  liis  per- 
sonal effects  as  are  necessary  to  his 
comfort  and  dignity. — Taylor  vs. 
Best,  14  C.  B.  521.  For  the  sub- 
jection of  real  property  and,  in  cer- 
tain cases,  personal  property  owned 
by  public  ministers  to  obligations 
imposed  by  the  local  law,  see  I 
Dig.  Int.  Law,  §  95;  for  English 
cases,  see  Novello  vs.  Toogood,  i 
B  and  C.  562;  Gladstone  vs.  Mu- 
surus  Bey,  i  H.  and  M.  495. 

'  "An  act  of  violence  done  to  a 
private  person  is  an  ordinary  trans- 
gression, which,  according  to  cir- 
cumstances, the  prince  may  pardon  ; 
but,  if  done  to  a  public  minister,  it 
is  a  crime  of  state,  an  offence  agai nst 
the  law  of  nations;  and  the  power 
of  pardoning,  in  such  case,  does 
not  rest  with  the  prince  in  whose 
dominions  the  crime  has  been  com- 
mitted, but  with  him  who  has  been 
offended  in  the  person  of  his  rep- 
resentative. If,  however,  the  min- 
ister has  been  insulted  by  persons 


204 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


ity  by  the  municipal  laws  of  every  state.'  The  only  exception 
to  the  immunity  which  a  minister  enjoys  in  this  respect  would 
arise  from  his  own  misconduct.  For  any  minor  violation  of 
propriety  the  government  to  which  he  is  accredited  may  signi- 
fy its  displeasure,  either  privately  to  the  minister  himself,  or 
to  his  government  in  the  diplomatic  way.  For  a  more  serious 
offence,  amounting  to  crime,  his  recall  may  be  demanded.     If 


who  were  ignorant  of  his  charac- 
ter, the  offence  is  wholly  unconnect- 
ed with  the  law  of  nations,  and  falls 
within  the  class  of  ordinary  trans- 
gressions."—  Vattel,  liv.  iv.  chap, 
vii.  §  82. 

'  HefTter,  §  214;  Bluntschli,  §§ 
209-213;  Hall,  §  50;  Dana's  Whea- 
ton,  §  225,  226,  note  129;  Lawrence, 
Int.  Law,  §  150;  I  Halleck,  pp.  278- 
287;  Kliiber,  §  211;  I  Dig.  Int. 
Law,  §§  92,  93a.  Where  the  charge 
d'affaires  had  a  large  party  at  his 
house,  and  a  transparent  painting  at 
his  window  at  which  a  mob  which 
had  collected  took  offence,  the  de- 
fendant fired  two  pistols  at  the 
window,  his  intention  being  to  de- 
stroy the  painting  without  doing 
injury  to  the  person  of  the  minister 
or  of  any  one.  The  prisoner  was 
indicted  for  an  assault  upon  the 
charge  d'affaires  of  Russia,  and  for 
infracting  the  law  of  nations,  by 
offering  violence  to  the  person  of 
the  said  minister. — United  States 
vs.  Hand,  2  Washington,  435. 
Held,  the  law  of  nations  identifies 
the  property  of  a  foreign  minister, 
attached  to  his  person  or  in  his 
use,  with  his  person.  To  insult 
them  is  an  attack  on  the  minister 
and  his  sovereign,  and  it  appears 
to  have  been  the  intention  of  the 
act  of  Congress  to  punish  offences 
of  this  kind.— Ibid.  To  constitute 
an  offence  against  a  foreign  min- 
ister, the  defendant  must  have 
known  that  the  house  on  which 
the  attack  was  made  was  the  dom- 
icile of  a  minister,  otherwise  it  is 


only  an  offence  against  the  munic- 
ipal laws  of  the  state. — Ibid.  The 
law  is  the  same  in  the  case  of  a  de- 
fendant charged  with  an  assault  of 
a  minister  as  when  charged  with 
the  same  offence  against  a  citizen  ; 
and  if  the  minister  gave  the  first 
assault  the  defendant  will  be  ex- 
cused for  the  subsequent  battery 
though  he  was  a  minister. — United 
States  vs.  William  Liddle,  2  Wash- 
ington, 205.  Upon  an  indictment 
for  an  assault  committed  on  the 
charge  d'affaires  of  a  foreign  gov- 
ernment, proof  that  the  person  as- 
saulted is  received  and  recognized 
by  the  Executive  of  the  United 
States  is  conclusive  as  to  his  pub- 
lic character,  and  that  he  is  entitled 
to  all  the  immunities  of  a  foreign 
minister.  —  United  States  7^5-.  Orte- 
ga, 4  Washington,  531.  If  a  foreign 
minister  commits  the  first  assault, 
he  forfeits  his  immunity  so  far  as  to 
excuse  the  defendant  for  returning 
it.  —  Ibid.  It  is  no  defence  upon 
such  indictment  that  defendant  was 
ignorant  of  the  public  character  of 
the  minister. — Ibid.  Domestic  ser- 
vants of  a  foreign  minister  are  not 
liable  to  the  ordinary  tribunals  of 
the  country  for  misdemeanors. — 
United  States  7>s.  Lafontaine,-  4 
Cranch,  C.  Ct.  173.  It  is  a  breach 
of  diplomatic  privilege  for  an  offi- 
cer of  justice  to  enter  the  dwelling- 
house  of  a  secretary  of  legation, 
and  there  to  seize  a  runaway  slave  ; 
and  for  so  doing  the  officer  will  be 
removed. — United  States 7/j'.  Jeff ers, 
4  Cranch,  C.  Ct.  704. 


THE    RIGHT    OF   LEGATION  205 

the  request  be  not  acceded  to,  he  may  be  summarily  dismissed, 
or  notified  to  quit  the  territory  of  the  offended  state.  For 
crime  of  an  aggravated  sort,  amounting  to  treason,  or  a  trea- 
sonable conspiracy  against  the  government,  he  is  deemed  to 
have  forfeited  his  immunity,  and  may  be  forcibly  expelled ; 
but  he  may  never  be  subjected  to  criminal  prosecution  in  the 
state  in  which  he  resides  in  the  character  of  ambassador.' 

Immunity  from  Civil  Jurisdiction,  A  similar  immunity 
from  civil  jurisdiction  is  sanctioned  by  the  general  usage  of 
nations.  An  ambassador,  in  his  public  character,  is  exempt 
from  the  service  of  process,  and  suits  against  him  can  only 
be  brought  in  the  courts  of  his  own  country.  His  furniture 
and  other  movable  property  are  exempt  from  taxation,  and 
from  seizure  in  execution  of  judgment.  This  immunity,  how- 
ever, only  attaches  to  him  in  his  diplomatic  capacity.  It  does 
not  extend  to  any  other  interests  he  may  have  in  the  state  in 
which  he  is  resident ;  and,  as  a  merchant,  trustee,  or  executor, 
his  property  is  subject  to  the  local  law.  If  he  waives  his  dip- 
lomatic privilege  and  submits  himself  to  the  jurisdiction  of  the 
local  courts  by  appearing  in  them  as  a  party  to  a  cause,  he 
must  abide  by  their  decision.  It  has  been  held,  however,  that 
a  judgment  against  him  can  only  be  satisfied  out  of  property 
held  by  him  in  his  private  capacity.^ 

'  In  what  cases  a  minister,  by  in-  ceased  to  be  entitled  to  them. — 

fracting  the  laws  of  the  country  in  Schooner  Exc/ian^-e  vs.  McFaddon, 

which  he  resides,  may  subject  him-  7  Cranch,  116  [139].      During  the 

self    to    other    punishments   than  reign  of  Queen  Elizabeth  three  am- 

those  inflicted  by  liis  own  sever-  bassadors  of  foreign  powers  were 

eign,  is  an  inquiry  foreign  to  the  detected  in  plots  for  the  assassina- 

present  purpose.     If  his  crimes  be  tion  or  dethronement  of  the  queen, 

such  as  to  render  him  amenable  to  In  two  cases,  those  of  the  Scotch 

local  jurisdiction,  it  must  be  be-  and  Spanish  ambassadors,  the  of- 

cause   they   forfeit   the    privileges  fenders  were  ordered  to  leave  the 

annexed  to  his  character;  and  the  kingdom;    in  the  other  no  action 

minister,  by  violating  the   condi-  was  taken.      For  other  cases,  see 

lions  under  which  he  was  received  Walker,  Int.  Law,  part  ii.  chap.  iii. 

as  the  representative  of  a  foreign  §  26;  II  Phillimore,  §§  156-171. 

sovereign,  has  surrendered  the  im-  -  Hefifter,§2i5;  Bluntschli,§§2i8- 

munities  granted  on  those  condi-  221;  Dana's  Wheaton,§§  224-226  ;  I 

tions;    or,  according  to   the  true  Dig.  Int.  Law,  §§  92,  93  ;  I  Twiss,  §§ 

meaning  of  the  original  assent,  has  216,  217  ;  Kliiber,  §§  209-214. 


206  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

Immunity  of  an  Ambassador's  Hotel.  If  the  principle  of 
exterritoriality  were  of  invariable  application,  it  would  foll-^.v 
that,  since  his  house  and  premises  are  held  to  be  part  of  the 
territory  of  the  state  which  he  represents,  his  jurisdiction  over 
them  would  be  complete  and  exclusive  as  regards  the  author- 
ity of  the  government  to  which  he  is  accredited.  This  is  not 
the  case,  however.  If  a  crime  be  committed  by  a  person  of 
his  suite  against  a  foreigner,  the  offender  may  be  arrested  or 
detained  by  the  minister,  and  held  subject  to  the  extradition 
process,  or  sent  home  for  trial ;  or,  with  the  consent  of  the 
minister's  government,  he  may  be  surrendered  for  trial  in  the 
local  courts.  A  crime  committed  by  one  person  of  his  suite 
against  another  is  justiciable  only  in  the  courts  of  the  min- 
ister's country.  Nor  can  an  ambassador's  house  be  made  an 
asylum  for  criminals.  The  surrender  of  an  offender  who 
takes  refuge  there  may  be  demanded,  and  if  denied  he  may 
be  forcibly  removed.  The  privilege  of  an  ambassador  is  thus 
seen  to  be,  to  a  certain  extent,  negative  in  character.  The 
law  of  nations  secures  to  him  such  personal  immunity  as  is 
necessary  to  the  proper  and  adequate  performance  of  his 
duties.  It  also  guarantees  to  him  such  honors  and  privileges 
as  befit  the  representative  of  a  sovereign  state.'     But  no  such 

'  Even  the  house  of  a  foreign  the  legation,  and  the  late  charge 
minister  cannot  be  made  an  asylum  was  arrested  and  imprisoned  in  de- 
fer a  guilty  citizen,  nor  is  it  appre-  fault  of  bail.  On  a  motion  to  quash 
bended  a  prison  for  an  innocent  the  process  it  was  held  : 
one.  And,  though  it  be  exempt  i.  That  the  recognition  of  a  for- 
from  the  ordinary  jurisdiction  of  eign  minister  is  conclusive  evidence 
the  country,  yet,  in  such  cases,  re-  of  the  authenticity  and  validity  of 
course  would  be  had  to  the  inter-  his  credentials, 
position  of  the  extraordinary  pow-  2.  Where  a  diplomatic  represent- 
er  of  the  state.— I  Opin.  Atty.-Gen.  ative  announces  the  cessation  of 
p.  47  ;  Vattel,  liv.  iv.  ch.  ix.  §  1 18  ;  his  functions  by  reason  of  a  change 
Kliiber,  §  208;  Bluntschli,  §  200;  of  authority  in  his  country,  and 
Calvo,  §  555;  Hall,  §  52;  II  Philli-  obtains  his  passports,  he  has  not 
more,  §§  204,  205  ;  Heffter,  §  216.  waived  his  privilege  as  a  returning 

The  charge  d'affaires  appointed  minister,  and  the  process  should  be 

by  Dom  Miguel,  of  Portugal,  com-  quashed. 

menced  an  action  in  trover  in  the  3.  Such  a  suit,  as  in  this  case,  is 

state    court    of    Pennsylvania,    in  no  evidence  that  the  sovereign  has 

1829,  against  the  late  charge  to  re-  depriv^ed  the  charge  of  his  privilege, 

cover  the  archives  and  property  of  even  if  it  were  competent  so  to  do. 


THE  RIGHT  OF  LEGATION 


207 


privilege  or  immunity  attaches  to  him  when  committing  a 
crime  or  doing  a  wrongful  act,  and  he  may  be  restrained,  if 
need  be  by  force,  if  he  attempts  to  commit  a  crime  against 
the  person  or  property  of  another.  In  the  exercise  of  the 
right  of  self-defence  he  may  be  resisted,  and  wounded,  or  even 
killed,  by  the  person  whom  he  has  assaulted,  and  this  without 
giving  cause  of  complaint  to  the  government  which  employs 
him. 

Cases  Against  Public  Ministers,  where  Triable.  While 
the  immunities  accorded  to  public  ministers  are  of  the  most 
extensive  and  important  character,  amounting,  in  fact,  to  an 


— Torladew.  Barrozo,  i  Miles  (Pa.). 
366.  The  attorney  who  issued  the 
capias  was  thereupon  indicted  un- 
der the  act  of  Congress  and  tried 
in  the  Federal  court.  The  case 
went  to  the  Supreme  Court  of  the 
United  States  on  a  difference  of 
opinion,  and  a  nolle  prosequi  was 
entered  by  direction  of  the  Presi- 
dent.— United  States  vs.  Phillips,  6 
Peters,  776. 

Nitcheiwff's  Case.  In  1867,  one 
NitchenofF,  a  Russian  subject,  en- 
tered the  hotel  of  the  Russian  am- 
bassador in  Paris,  in  the  absence 
of  the  ambassador,  and  killed  one 
of  the  legationary  attaches.  The 
French  police  were  called  in  and 
arrested  the  offender.  The  Rus- 
sian ambassador  demanded  the  sur- 
render of  Nitchenoff  with  a  view  to 
his  being  sent  to  Russia  for  trial. 
The  French  Government  declined 
to  honor  this  demand  on  theground 
that  the  hotel  of  an  ambassador 
did  not  furnish  an  asylum  to  a 
stranger  committing  an  offence 
within  its  premises.  For  other 
cases,  see  Hall,  §  53,  and  II  Philli- 
more,  pp.  192-227.  The  persons 
and  household  goods  of  foreign 
ambassadors,  and  of  those  who  are 
attached  to  their  respective  lega- 
tions, are  exempt  from  lawful  ar- 
rest, seizure,  or  molestation,  as  well 


by  the  law  of  nations  as  by  the  act 
of  April  30,  1790,  section  28(1  Stat. 
118;  R.  S.  §  4062.)  It  is,  therefore, 
unlawful  for  the  keeper  of  a  hotel 
in  Washington,  with  whom  an  at- 
tache of  the  legation  of  France  is 
a  boarder,  to  oppose  by  force,  in 
any  manner,  the  removal  therefrom 
of  any  of  his  personal  effects. — V 
Opin.  Att. -Gen.  p.  69.  Yet  it  is 
not  incumbent  on  the  Secretary  of 
State  to  interfere  in  such  cases. 
The  act  of  Congress,  which  de- 
nounces the  act  and  prescribes  the 
penalty,  refers  them  to  the  judici- 
ary.—  II  Ibid.  p.  290.  A  foreign 
minister  cannot  waive  his  privileges 
or  immunities;  bis  submission  or 
consent  to  an  arrest  is  no  justifica- 
tion.— U.  S.  vs.  Benner,  Baldwin, 
234.  An  assault  committed  by  him 
maybe  repelled  in  self-defence,  but 
does  not  justify  an  arrest  on  proc- 
ess.— Ibid.  An  attache  to  a  foreign 
legation  is  a  public  minister  with- 
in the  act  of  Congress. — Ibid.  A 
certificate  by  the  Secretary  of 
State,  under  seal  of  office,  that  a 
person  has  been  recognized  by  the 
Department  of  State  as  a  foreign 
minister,  is  full  evidence  that  he 
has  been  authorized  and  received 
as  such  by  the  President  of  the 
United  States. — Ibid. 


208     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

almost  complete  exemption  from  the  operation  of  the  local 
laws,  it  does  not  follow  that  they  are  exempt  from  all  legal 
responsibility,  or  that  there  are  no  courts  which  have  jurisdic- 
tion over  them.  They  are  in  all  respects  amenable  to  the 
jurisdiction  of  the  courts  of  their  own  country,  and  before 
those  courts  they  may  be  required  to  appear  as  parties  defend- 
ant in  causes  of  a  civil  or.  criminal  character.' 

Immunity  of  Public  Ministers  in  States  Other  than 
Those  to  which  They  are  Accredited.  A  similar,  though 
less  extensive,  immunity  attends  the  correspondence  of  a 
public  minister  with  his  government,  and  his  transit  to  and 
from  his  place  of  of^cial  residence.'  Although  the  privileges 
of  ambassadors  are,  in  strictness,  only  available  in  countries 
to  which  they  are  formally  accredited  in  a  diplomatic  ca- 
pacity, they  are  entitled,  through  comity,  to  immunity  from 
interference  and  annoyance  w^hile  in  the  territories  of  third 
states  while  en  route  to,  and  returning  from,  their  respective 
posts  of  duty.' 

Privilege  of  Religious  Worship.  The  privilege  of  relig- 
ious worship  according  to  a  prohibited  form,  or  one  different 
from  that  prevailing  in  the  country  to  which  an  ambassador 
is  accredited,  is  now  generally  accorded,  subject  to  certain  re- 
strictions as  to  publicity.  Increasing  tolerance,  however,  in 
all  matters  of  religious  opinion  has  detracted  somewhat  from 
the  advantage  of  the  concession,  as  it  has  deprived  the  restric- 
tions of  much  of  their  former  significance  and  force.  A  cer- 
tain jurisdiction  is  also  conceded  to  ministers  in  the  perform- 

'  Lawrence,    Int.     Law,    §    151;  jected  to  censorship  in  San  Salvador 

Dana's  Wheaton,  §§  224-243  ;  Hall,  in  1890.     The  act  was  disclaimed  by 

§§  50-53;  Bluntschli,  §§  191-226;  I  the  latter  government.— For.  Rel. 

Dig.  Int.  Law,  §94;  li  Phill.  §  158.  of  the  U.  S.  1890,  pp  1 13,  114-    The 

^  I  Dig.  Int.  Law,  §  97  ;  II  Philli-  United  States  Minister  to  Turkey 

more,    pp.    208-211;    Hall,    §    99;  complained,  in  the  year  1893,  that 

Lawrence,   Int.  Law,  §  150;    Heft-  his  communications  with  the  State 

ter,  §  206 ;  Kliiber,  §  204.  Department  had  been  opened  by 

'  Complaint    was    made    by    the  Turkish  officials.— For.  Rel.  of  the 

United  States  Government  that  its  U.  S.  1893,  pp.  620,  624.     See  also 

telegraphic    communications   with  Vattel,  liv.  iv.  chap.  vii.  §§  82-85, 

its  minister  in  Guatemala  were  sub-  125  ;  I  Twiss,  §  222. 


THE    RIGHT   OF   LEGATION  209 

ance  of  certain  legal  acts  in  behalf  of  their  fellow -subjects, 
such  as  formalizing  and  registering  marriages,  births,  and 
deaths,  and  other  acts  of  like  character.* 

Exemption  from  Customs  Dues,  etc.  Foreign  ministers 
are  usually  exempted  from  the  payment  of  customs  duties 
upon  articles  imported  by  them,  and  intended  for  their  per- 
sonal use.  Such  articles  are  subject  to  the  usual  inspection, 
and  precautions  calculated  to  prevent  an  abuse  of  the  privi- 
lege are  justifiable.  To  avoid  such  abuses  some  states  permit 
a  certain  amount  to  be  imported  free  of  duty,  and  collect  the 
usual  dues  upon  articles  imported  in  excess  of  the  authorized 
amount  or  value.  The  privilege  of  an  ambassador  does  not 
exempt  him  from  the  observance  of  the  police  and  sanitary 
regulations  of  the  city  in  which  his  official  residence  is  situ- 
ated. For  a  violation  of  such  ordinances,  however,  he  can 
only  be  proceeded  against  in  a  diplomatic  way.  Nor  does  his 
privilege  exempt  him  from  the  payment  of  tolls,  or  of  postage 
upon  such  of  his  correspondence  as  may  be  intrusted  to  the 
ordinary  mails  for  delivery.^ 

Legationary  Asylum.  Although  the  rule  of  international 
law  that  the  residence  of  a  minister  may  not  be  used  as  an 
asylum  for  criminals  is  well  settled,  the  practice  of  furnishing 
legationary  asylum  to  persons  charged  with  political  offences, 
and  to  officials  overthrown  by  revolutionary  movements,  still 
exists  in  some  states  of  the  West  Indies  and  of  Central  and 
South  America.  Such  asylum  has  been  offered  in  recent 
times  by  the  ministers  and,  in  a  limited  number  of  cases,  by 
the  consuls  of  Great  Britain  and  the  United  States  in  those 
countries.  In  the  case  of  the  diplomatic  representatives  of 
the  latter  power,  however,  such  asylum  has  been  afforded  in 
opposition  to  the  policy  and  instructions  of  the  government. 
It  has  been  justified  solely  on  the  ground  of  humanity,  and 

'  Bluntschli,§§  203-208;  Heffter,  298;  Bluntschli,  §§  222,  223  ;   Heff- 

§213;  I  Hallec'k,  pp.  299,  300;  Klii-  ter,  §  217;  I  Dig.  Int.  Law,  §  95; 

ber,  §§  215,  216;   I  Twiss,  §  221 ;  II  Dana's  Wheaton,  §  242,  note  131 ; 

Phillimore,  §209;  Hall,  p.  181,  note.  I  Twiss,  §220. 

'  Kluber,   §    205 ;    1   Halleck,   p. 


2IO     THE  ELEMENTS  OF  INTERNATIONAL  LAW         ' 

has  usually  been  afforded  only  in  cases  of  individuals  whose 
lives  were  in  actual  danger  from  mob  violence,  and  has  been 
limited  in  point  of  time  to  a  particular  day,  as  to  the  sailing  of 
a  particular  steamer.  With  a  view  to  the  suppression  of  the 
practice,  the  Government  of  the  United  States  suggested,  in 
1870,  that  the  great  powers  should  combine  in  instructing 
their  diplomatic  agents  to  refuse  such  asylum  in  the  future; 
but  this  effort  did  not  meet  with  success.' 

Military  and  Naval  Attaches.  The  practice  of  assigning 
officers  of  the  army  and  navy  of  a  state  to  duty  as  military  and 
naval  attaches  at  its  principal  legations,  though  relatively  re- 
cent in  origin,  has  become  quite  general.  These  officers  are 
detailed  and  assigned  to  duty  by  the  head  of  the  state  which 
they  represent,  and  are  placed  on  a  similar  footing,  in  respect 
to  privilege,  as  is  occupied  by  the  other  attaches  of  the  lega- 
tion. Their  duties  are  neither  uniform  nor  well  defined  ;  but 
consist  in  the  observation  of  current  military  events  in  the 
state  to  which  they  are  accredited.  They  make  such  reports 
as  are  required  by  the  regulations  or  orders  of  the  state  which 
they  represent  in  a  military  capacity."  There  is  no  fixed  rule 
as  to  the  channels  through  which  these  reports  shall  be  sub- 
mitted, although,  as  the  minister  is  responsible  for  the  conduct 
and  policy  of  the  legation  and  for  the  official  conduct  of  his 
attaches  and  subordinates,  it  would  seem  proper  that  such 
papers  should  pass  through  his  hands.  As  a  matter  of  fact, 
however,  this  is  not  always,  nor  even  usually  the  case.  As  it 
is  a  part  of  the  duty  of  attaches  to  obtain  military  informa- 
tion in  the  state  in  which  they  reside,  there  have  been  in- 
stances in  which  considerable  friction  has  arisen  in  respect  to 
the  character  and  contents  of  the  reports  submitted  by  them  to 
their  governments,  and  the  sources  from  which  the  informa- 

'Hall,  §  52.     See  also,  for  recent  chap.  ix.  §§  118,  119;  Bluntschli,  §§ 

cases,    Foreign    Relations    of    the  200,  202;  I  Dig.  Int.  Law,  §§  104- 

United    States,   1876,  pp.  338-344;  107. 

1878,  p.  443;  1879.  PP-  57O'  576.  582  ;  ^  Foreign  Relations  of  the  United 

1885,  p.  207;   1886.  p.  530;   1890,  p.  States,  1879,  p.  906  ;    Dientz  ot.  La 

522;    1895,  pp.   245,  246;    1896,  p.  Jara,  Trib.  Civ.  de  la  Seine,  July 

381;  Kliiber,  §208;  Vattel,  liv.  iv.  31,  1878;  Bar,  p.  617. 


THE   RIGHT   OF    LEGATION  211 

tion  has  been  obtained,  in  consequence  of  which  the  recall  of 
particular  attaches  has  been  demanded. 

In  time  of  war  military  and  naval  officers  are  sometimes 
specially  assigned,  or  accredited,  to  the  belligerent  powers, 
with  a  view  to  their  being  permitted  to  accompany  armies  in 
the  field,  in  order  to  observe  the  details  of  the  military  opera- 
tions. These  officers,  unless  formally  attached  to  the  legation 
at  the  capital  of  the  belligerent  state,  are  entirely  without  the 
diplomatic  character.  Their  functions  are  restricted  to  the 
observation  of  the  military  operations,  in  which  they  are  for- 
bidden to  assist  or  take  active  part.  If  captured,  not  having 
the  enemy  character,  they  cannot  be  placed  in  the  status  of 
prisoners  of  war ;  but  they  may  be  detained  by  the  belliger- 
ent into  whose  hands  they  fall  if  their  release,  immediately 
after  capture,  would  lead  to  a  disclosure  of  his  plans,  or  con- 
vey to  the  enemy  any  information  as  to  his  strength,  positions, 
or  movements. 

Consuls  :  Consular  Jurisdiction 

History  of  the  Consular  Function.  Consuls  are  persons 
appointed  by  the  government  of  a  state  to  represent  its  com- 
mercial interests,  and  those  of  its  subjects,  in  the  principal 
ports  of  other  nations. 

The  practice  of  maintaining  consular  representatives  in  for- 
eign ports  and  commercial  cities  dates  back  to  the  very  be- 
ginning of  modern  commerce.  It  was  developed  among  the 
commercial  cities  of  the  Mediterranean,  and  grew  out  of  the 
exigencies  and  necessities  of  their  intercourse  with  the  Levan- 
tine cities,  whose  forms  of  government  and  systems  of  law  were 
radically  different  from  their  own.  The  ships  of  foreign  mer- 
chants were  held  to  be  navigated  under  the  jurisdiction  of  the 
nation  whose  flag  they  carried  ;  and  the  general  practice  was 
for  vessels  engaged  in  long  sea  voyages,  some  of  which  occu- 
pied a  period  of  not  less  than  three  years,  to  have  on  board  a 
magistrate,  whose  duty  it  was  to  administer  the  law  of  the  coun- 
try of  the  flag  among  all  on  board,  not  merely  while  the  ves- 
sel was  on  the  high  seas,  but  while  she  was  in  a  foreign  port, 


212  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

loading  or  unloading  cargo.  This  magistrate  was  termed  the 
alderman  in  the  ports  of  the  North  and  Baltic  seas,  while  in 
the  Mediterranean  ports  he  was  designated  by  the  familiar 
name  of  consul,  and  was  the  precursor  of  the  resident  com- 
mercial consul,  who  continues  in  the  present  day  to  exercise 
within  merchant  ships  of  his  own  nationality,  notwithstanding 
they  are  within  the  territorial  jurisdiction  of  another  state,  a 
portion  of  the  personal  jurisdiction  formerly  exercised  by  the 
ship's  consul.  The  exercise  of  this  consular  jurisdiction  re- 
quires no  fiction  of  exterritoriality  to  support  it.  Its  limits 
are  either  regulated  by  commercial  treaties,  or,  where  it  has 
originated  in  charter  privileges,  it  is  now  held  to  rest  upon 
custom.' 

The  institution  had  become  fully  established,  in  much  the 
same  form  as  it  now  exists,  at  the  end  of  the  twelfth  century, 
at  which  time  Venice  was  represented  in  the  East  by  consuls 
at  Constantinople,  Aleppo,  Jerusalem,  and  Alexandria.  The 
Eastern  Empire  maintained  a  consul  at  Marseilles,  and  for- 
eign consulates  had  long  been  established  and  recognized  at 
the  port  of  Barcelona,  in  Spain.  These  early  consuls  per- 
formed many  of  the  duties  of  modern  ambassadors,  and  had 
something  of  their  inviolable  character.  As  a  result  of  the 
general  establishment  of  permanent  missions  in  Europe  in  the 
seventeenth  century,  an  important  change  was  made  in  the 
consular  function  in  all  the  states  of  the  West.  The  diplo- 
matic duties  were  transferred  to  the  class  of  public  ministers, 
to  whom  the  character  of  inviolability  was  attached ;  and 
there  remained  to  the  consuls  a  class  of  duties  of  a  com- 
mercial character,  closely  resembling  those  which  they  now 
perform.  In  the  Levant,  however,  where  no  permanent  mis- 
sions were  established,  consuls  continued  to  enjoy  their  old 

'  Consuls,  as  international  com-  in  Italy. — VII  Opinions  of  Attor- 

mercial  agents,  originated  in   the  ney-General,p.  342.    See  also  an  ar- 

colonial  municipalities  of  the  Latin  tide  on  the  history  of  the  consular 

Christians    in    the    Levant,   which  office  in  the  English  Z^?7£'il/rt'^a^/«<? 

municipalities  were  self-governing  for  February,  1876  ;  I  Twiss,  §  223  ; 

through    their  "consuls,"  the  an-  I  Halleck.  pp.  310,  311. 
cient  title  of  municipal  magistrates 


THE    RIGHT   OF   LEGATION  213 

powers  and  privjleges ;  these,  to  a  great  extent,  they  still 
retain/ 

Classification  of  Consuls.  Consular  officials  are  usually 
classified  into  consuls-general,  consuls,  vice-consuls,  and  con- 
sular agents,  and  each  state,  by  its  municipal  law,  determines 
the  manner  of  appointment,  the  tenure  of  office,  and  the  spe- 
cial duties  of  its  consular  representatives  in  foreign  ports.  In 
this  way  a  state  may  confer  upon  its  consuls  such  power  and 
jurisdiction  as  it  wishes  them  to  exercise,  provided  such  exer- 
cise of  jurisdiction  is  sanctioned  by  the  usage  of  nations,  or 
has  been  conceded  by  treaty.  In  the  Christian  states  of  Eu- 
rope and  America  consuls  have  none  of  the  privileges  and 
immunities  of  ambassadors.  In  the  Levant,  however,  in  many 
Asiatic  and  African  ports,  and  in  the  islands  of  the  sea,  they 
perform  the  duties  and  are  entitled  to  the  exemption  of  pub- 
lic ministers. 

By  whom  Appointed.  Consuls  are  appointed  by  the  sover- 
eign, or  chief  executive  authority  of  the  state  which  they  rep- 
resent, subject  to  such  restrictions  in  the  matter  of  citizenship, 
character,  and  qualifications  as  are  determined  by  its  municipal 
laws.  They  are  provided  with  commissions,  or  letters  of  ap- 
pointment, which  are  submitted,  through  their  ministers,  to  the 
Department  of  Foreign  Affairs  of  the  state  in  which  they  are 
to  perform  consular  duty.  If  that  government  consents  to 
recognize  them  in  the  capacity  of  consuls,  an  exequatur  is  is- 
sued, upon  the  receipt  of  which  they  are  authorized  to  enter 
upon  the  performance  of  their  duties.  For  misconduct  or 
crime,  or  for  acts  in  excess  of  their  jurisdiction,  the  exequatur 
m.ay  be  withdrawn  or  revoked  at  any  time  ;  and  if  this  action 
be  taken  for  just  and  sufficient  cause,  the  government  of  the 
state  which  the  consul  represents  will  have  no  reasonable 
ground  of  complaint.'' 

'  II  Phillimore,  pp.  258-262;   I  exequatur  of  the  French  consul  at 

Halleck,  pp.  310,  311;    Hefifter,  §§  Boston  was  withdrawn  for  having 

244,  245;  Dainesez'i-.  Hale,  91  U.S.  taken  part  in  an  attempt  to  rescue 

13;  I  Lorimer,  chap.  vii.  a   vessel  out  of  the  hands  of  the 

^  This  procedure  is  by  no  means  United  States  marshal,  which  had 

uncommon.     In  October,  1793,  ^^'^  been  brought  in  as  a  French  prize, 


214 


THE   ELEMENTS   OF    INTERNATIONAL   LAW 


Manner  of  Appointment  in  the  United  States.  The  mem- 
bers of  the  United  States  Consular  Establishment  are  arranged 
into  three  principal  classes — consuls-general,  consuls,  and  com- 
mercial agents."  They  are  appointed  by  the  President  with  the 
consent  of  the  Senate.  They  receive  fixed  salaries,  augmented 
in  certain  cases  by  fees,  and  those  whose  salaries  exceed  one 


but  upon  which  process  had  been 
served  at  the  suit  of  the  British 
consul,  who  claimed  that  she  had 
been  illegally  captured  in  the  neu- 
tral waters  of  the  United  States. — 
Hildreth,  History  of  the  U.  S.  vol. 
iv.  p.  437".  I  Dig.  Int.  Law,  §§  113, 
114,  115,  116.  Another  and  more 
remarkable  case  occurred  in  1861. 
In  order  to  protect  British  com- 
merce. Her  Majesty's  Government 
was  desirous  that  the  Confederate 
states  should  observe  the  last  three 
articles  of  the  Declaration  of  Paris ; 
accordingly  Mr.  Bunch,  the  British 
consul  at  Charleston,  S.  C,  was  in- 
structed to  communicate  this  desire 
to  the  Confederate  authorities.  The 
United  States  thereupon  demanded 
that  Mr.  Bunch  should  be  removed 
from  his  office,  on  the  ground  that 
the  law  of  the  United  States  forbade 
any  person,  not  specially  appointed, 
from  counselling,  advising,  or  in- 
terfering in  any  political  corre- 
spondence with  the  government  of 
any  foreign  state  in  relation  to  any 
disputes  or  controversies  with  the 
United  States.  It  was  contended 
that  Mr.  Bunch  should  have  known 
of  the  existence  of  this  law,  and 
should  have  communicated  it  to  his 
government  before obeyingtheir  in- 
structions. It  was  also  urged  that 
the  proper  agents  to  make  known 
the  wishes  of  a  foreign  government 
were  its  diplomatic,  and  not  its 
consular,  officers.  On  these  grounds 
Mr.  Bunch's  exequatur  was  with- 
drawn.— Boyd's  Wheaton,  p.  305  ; 
United  States  Diplomatic  Corre- 
spondence, 1862,  p.  I. 


^  Section  1690  Revised  Statutes  ; 
I  Dig.  Int.  Law,  §§  113,  114.  The 
duties  of  consular  officers  of  the 
United  States  are  determined  in 
part  by  municipal  law  and  in  part 
by  treaty  stipulations,  and  by  the 
requirements  of  the  law  of  nations." 
They  are  required  to  act  in  behalf 
of  owners  of  stranded  vessels, ''  to 
receive  from  the  masters  of  Ameri- 
can vessels,  upon  their  arrival  in 
port,  their  registers,  sea-letters,  and 
Mediterranean  passports,  and  to  re- 
turn them  when  a  proper  clearance 
has  been  obtained,  by  such  masters, 
from  the  port  authorities. •=  They 
are  required  to  make  reclamation 
of  deserters  from  merchant  vessels, 
and,  when  treaty  stipulations  au- 
thorize it,  to  demand  from  the  local 
authorities  such  assistance  as  they 
may  need  to  effect  their  capture 
and  return.''  They  are  also  re- 
quired to  certify  inv'oices  of  mer- 
chandise which  it  is  proposed  to 
import  into  the  United  States,  and 
to  require  satisfactory  evidence,  by 
oath  if  need  be,  of  their  correct- 
ness." They  are  to  keep  lists  of 
seamen  shipped  and  discharged  by 
them,  and  of  vessels   arrived  and 

»  Halleck,  vol.  i.  pp.  315,  316,  gives 
a  full  list  of  the  legal  and  acting  titles 
of  United  States  consuls.  For  fuller 
information  as  to  their  powers  and 
duties,  see  the  official  Regulations  Pre- 
scribed for  the  Consular  Service  of  the 
United  States,  Washington,  December 
31,  1S96.  ''Revised  Statutes  of  the 
United  States,  §  4238.  =  Ibid.  §|  4309, 
4310.  ^  Ibid.  i§  4598  -  4600.  «  Re- 
vised Stat,  of  the  United  States,  §  2852. 


THE   RIGHT   OF   LEGATION  21 5 

thousand  dollars  per  annum  are  forbidden  to  engage  in  trade. 
Consular  positions  of  the  highest  class  can  only  be  filled  by 
citizens  of  the  United  States.  Their  general  duties  are  ascer- 
tained  and  fixed  by  law.  The  President  is  empowered  to  de- 
fine the  territorial  limits  of  the  different  consulates,  and  to 
make  all  needful  regulations  for  the  consular  service.' 

The  Duties  of  Consuls.  It  is  the  duty  of  the  consular  rep- 
resentatives of  a  state  to  watch  over  its  commercial  interests, 
to  supervise  the  execution  of  commercial  treaties,  and  to  assist, 
by  interference  and  counsel,  such  of  their  fellow- citizens  as 
may  be  sojourning,  either  permanently  or  temporarily,  at  the 
place  of  their  official  residence.  They  are  authorized  to  adjust 
disputes  arising  on  board  vessels  of  their  own  nation,  to  hear 
and  act  upon  complaints  of  members  of  their  crews,  to  issue 
and  countersign  passports  to  their  fellow-citizens,  to  authenti- 
cate the  judgments  of  foreign  courts  by  their  consular  seal, 
and,  if  the  local  laws  permit,  to  act  as  administrators  upon  the 
estates  of  decedents  of  their  own  nationality.  They  are  also 
authorized  to  register  births,  marriages,  and  deaths,  and  may 
solemnize  marriages  when  the  contracting  parties  are  of  the 
same  nationality  as  themselves,  unless  forbidden  to  do  so  by 
the  municipal  law  of  their  own  states,  or  that  of  the  state  in 
which  they  officially  reside.  They  are  permitted  to  exercise  a 
certain  voluntary  jurisdiction  over  their  fellow-citizens  in  cases 

cleared,  with  an  account  of  the  nat-  of  any  citizen  of  the  United  States 
ure  and  value  of  their  cargoes.'  who  may  die  within  their  consular 
They  are  to  care  for  destitute  sea-  jurisdiction  leaving  no  legal  repre- 
men,  and  to  cause  the  same  to  be  sentatives.  They  may  sell  such  of 
transported  to  the  United  States.^  this  property  as  is  of  a  perishable 
and  are  to  procure  and  transmit  to  nature  to  pay  debts  due  from  the 
the  State  Department  such  authen-  estate,  transmitting  the  residue  to 
tic  commercial  information  respect-  the  Treasury  of  the  United  States." 
ing  the  country  in  which  they  re-  '  Section  1752  Revised  Statutes, 
side  as  may  be  required  by  the  This  power  was  last  exercised  by 
head  of  that  department.^  They  President  Cleveland  in  the  prepara- 
are  authorized  to  solemnize  mar-  tion  of  a  volume  of  Consular  Reg- 
riages  between  persons  who  would  ulations,  bearing  date  December 
be  permitted  by  law  to  marry  if  31,  1896. 
resident  in  the  District  of  Colum- 
bia,' and  may  take  possession,  in  f  Ibid.  §  1708.  e  Ibid.  §4577.  h  Ibid, 
certaincases,  of  the  personal  estates  §1712.'    "Ibid.  §4082.  '^'^  Ibid.  §  1709. 


2l6 


THE   ELEMENTS   OF   INTERNATIONAL   LAW 


with  which  the  local  law  has  no  concern  ;  but  no  contentious 
jurisdiction  can  be  exercised  over  their  fellow-countrymen 
without  the  express  permission  of  the  state  in  which  they  re- 
side, and  no  Christian  state  has,  as  yet,  permitted  the  criminal 
jurisdiction  of  foreign  consuls.' 

Privileges  of  Consuls.  Although  consuls,  as  such,  are  not 
clothed  with  the  diplomatic  character,  and  are,  for  that  reason, 
not  entitled  to  any  of  the  peculiar  immunities  which  attach  to 
diplomatic  office,  they  nevertheless  enjoy  certain  privileges 
which  are  sanctioned  by  the  general  usage  and  practice  of  na- 
tions, and  are,  therefore,  recognized  as  rules  of  international 
law.  They  are  entitled  in  general  to  such  privilege  and  free- 
dom of  movement  as  are  necessary  to  enable  them  to  properly 
perform  the  duties  intrusted  to  their  charge ;  they  are  also 
presumed  to  be  entitled  to  all  the  powers  and  privileges  which 
their  predecessors  have  enjoyed,  and  may  properly  claim  any 


'  II  Pli ill i more,  §  249.  No  for- 
eign power  can,  of  right,  institute  or 
erect  any  court  of  judicature  of  any 
kind,  within  the  jurisdiction  of  the 
United  States,  but  such  only  as 
may  be  warranted  by  and  be  in 
pursuance  of  treaties.  The  admi- 
ralty jurisdiction,  which  has  been 
exercised  in  the  United  States  by 
consuls  of  France,  not  being  so  war- 
ranted, is  not  of  right. — Glass  z>s. 
Sloop  Betsey,  3  Dallas,  6.  The  prin- 
ciples of  international  law,  as  they 
are  recognized  in  Europe,  afford  no 
warrant  for  the  exercise  of  judicial 
powers  by  consuls,  but  the  rights 
and  duties  of  those  functionaries 
depend,  both  for  their  authority 
and  extent,  upon  the  treaties  sub- 
sisting between  the  governments 
exchanging  this  species  of  com- 
mercial agent.  — II  Opin.  Att.-Gen. 
p.  378.  Foreign  consuls  are  entitled 
to  no  immunities  beyond  those  en- 
joyed by  foreigners  coming  in  a 
private  capacity  to  this  country, 
except  that  of  being  sued  and  pros- 
ecuted exclusively  in  the  Federal 


courts.  Whenever  a  foreign  con- 
sul is  guilty  of  illegal  or  improper 
conduct,  he  becomes  liable  to  a 
revocation  of  his  exequatur,  and  to 
be  punished  according  to  our  laws, 
or  he  may  be  sent  back  to  his  own 
country,  at  the  discretion  of  our 
government.  —  II  Ibid.  p.  725.  A 
consul,  though  a  public  agent,  is 
supposed  to  be  clothed  with  author- 
ity only  for  commercial  purposes. 
He  has  an  undoubted  right  to  in- 
terpose claims  for  the  restitution  of 
property  belonging  to  subjects  of 
his  own  country,  but  it  is  not  com- 
petent for  him,  without  the  special 
authority  of  his  gov^ernment,  to  in- 
terpose a  claim  on  account  of  the 
violation  of  the  territorial  jurisdic- 
tion of  his  country. — The  Anne,  3 
Wheaton,  435.  A  consul  of  a  for- 
eign power,  though  not  entitled  to 
represent  his  sovereign  in  a  coun- 
try where  the  sovereign  has  an  am- 
bassador, is  entitled  to  intervene 
for  all  subjects  of  that  power  inter- 
ested.—Robson  vs.  the  Huntress,  3 
Wallace,  Jr.,  59. 


THE   RIGHT   OF   LEGATION  21 7 

right  exercised  by  a  consul  of  another  nation,  unless  such 
right  is  based  upon  treaty  stipulations.  They  are  generally 
regarded  as  exempt  from  arrest  for  political  reasons,  and  are 
not  subject  to  personal  imposts,  or  liable  to  the  performance 
of  personal  services ;  they  are  also  exempt  from  the  quarter- 
ing of  troops,  and,  in  general,  from  such  restrictions  as  are 
calculated  to  interfere  with  the  efficient  performance  of  their 
consular  duties.  They  are  usually  permitted  to  place  their 
national  flags  and  coats-of-arms  over  their  offices,  and  in  most 
states  their  archives  are  regarded  as  inviolable.' 

They  may  engage  in  business,  if  the  municipal  law  of  their 
own  country  permits  them  to  do  so,  and  may  be  prohibited 
from  so  doing  by  the  same  authority.  They  are  in  all  respects 
amenable  to  the  civil  and  criminal  jurisdiction  of  the  state  in 
which  they  are  resident,  unless  exempted  therefrom  by  treaty 
stipulations.  They  may  sue  or  be  sued  in  its  courts,  they  are 
subject  to  service  of  process,  both  civil  and  criminal,  and  judg- 
ments obtained  against  them  may  be  satisfied  out  of  their  pri- 
vate property." 

'  II  Phillimore,  §  246;  I  Twiss,  §  isters  within  the  law  of  nations,  or 

223;    Laurence,   Int.    Law,   §    148;  the  acts  of  Congress,  but  are  ame- 

Hall,§  105;  vol.  XX.  Revue  de  Droit  nable  to  the  civil  jurisdiction  of  our 

International,  pp.  229-245,  305,  609 ;  courts ;  and  in  the  case  of  the  Gen- 

xxii.  ibid.  pp.  336-348;  I  Lorimer,  oese  consul  (2  Dallas,  297)  it  was 

chap,  vii.;  I  Halleck,  p.  315.  held  that  they  were  not  privileged 

^  Hall,  §  105,  p.  318;  I  Halleck,  from  prosecutions  for  misdemean- 
pp.  31 5-324 ;  II  Phillimore,  pp.  296-  ors. — I  Opin.  Att.-Gen.  p.  406.  For- 
300;  I  Twiss,  pp.  378-380;  I  Wild-  eign  consuls  are  entitled  to  no  im- 
man,  p.  130;  Manning,  pp.  113,  114;  munities  beyond  those  enjoyed  by 
I  Dig.  Int.  Law,§§  120-123.  Aeon-  foreigners  coming  in  a  private  ca- 
sul  is  not  entitled  by  the  law  of  na-  pacity  to  this  country,  except  that 
tions  to  the  immunities  and  privi-  of  being  sued  and  prosecuted  ex- 
leges  of  an  ambassador  or  public  clusively  in  the  Federal  courts. 
minister.  He  is  liable  to  civil  Whenever  a  foreign  consul  is  guil- 
suits,  like  any  other  individual,  in  ty  of  illegal  or  improper  conduct, 
the  tribunals  of  the  country  in  he  becomes  liable  to  a  revocation 
which  he  resides.  —  Gettings  vs.  of  his  exequatur,  and  to  be  pun- 
Crawford,  Taney,  i.  A  consul  is  ished  according  to  our  laws,  or  he 
not  a  public  minister,  nor  entitled  may  be  sent  back  to  his  own  coun- 
to  the  privileges  attached  to  the  try,  at  the  discretion  of  our  govern- 
person  of  such  an  officer.  — I  Opin.  ment. — II  Ibid.  p.  725.  A  consul  is 
Att.-Gen.  p.  41.  Foreign  consuls  not  privileged  from  legal  process  by 
and  vice-consuls  are  not  public  min-  the  general  laws  of  nations,  nor  is 


2l8  THE   ELEMENTS  OF  INTERNATIONAL   LAW 

Halleck  holds  that  they  may  be  punished  for  their  criminal 
offences  by  the  laws  of  the  state  in  which  they  reside,  or  sent 
back  to  their  own  country  for  trial,  at  the  discretion  of  the 
government  which  they  have  offended.  A  distinction  is  made, 
however,  between  personal  offences  and  official  acts  done 
under  the  authority,  or  by  the  direction,  of  their  own  govern- 
ments. The  latter  are  matters  for  diplomatic  arrangement 
between  the  respective  states,  and  are  not  justiciable  by  the 
local  courts.'  Consuls  are  subject  to  local  taxation  and  to  the 
payment  of  customs  dues.  Their  places  of  residence  are  re- 
garded as  their  domicile  to  the  extent  that,  in  time  of  war, 
their  goods  on  the  high  seas  are  subject  to  belligerent  capture 
if  their  domicile  is  such  as  to  give  them  the  hostile  character. 

Consular  Jurisdiction.  In  certain  Eastern  countries,  whose 
standards  of  law  and  morals  differ  materially  from  our  own,  an 
extensive  jurisdiction,  both  civil  and  criminal,  is  exercised  by 
the  consuls  of  the  principal  Western  powers.  It  was  obtained 
in  the  first  instance  by  treaty  stipulation,  and  by  later  treaties 
has  been  modified  and  extended,  from  time  to  time,  as  the  ex- 

the  French  consul-general  by  the  a  case,  but   where   a   privilege   is 

consular   convention  between  the  claimed  a  plea  may  be  entered  to 

United  States  and  France  of  1788  the  jurisdiction  of  a  state  court,  or, 

(Pub.  Trs.  219  —  annulled  by  act  of  if  in  a  national  court,  the  consul 

1798 — 1  Stat.  578.) — Letombe'scase,  may  bring  the  question  before  the 

I  Op.  Att. -Gen.  p.  T] ,  Lee  (1797).  Supreme  Court. — lb. 

In  a  suit  brought  against  a  consul-  '  I  Halleck,  p.  313.     For  cases  in 

general  of  France  for  transactions  which  insults  to,  or  attacks  upon, 

of  a  public  nature,  and  in  which  consuls  have  been  made  the  subject 

he  acted  as  the  commercial  agent  of  complaint  in  the  cases  of  the 

of  his  country,  the  President  of  the  British  consul  at  Imoa  in  1873,  see 

United  States  has  no  constitution-  For.  Rel.  U.   S.  1874,  pp.  102-105, 

al  right  to  interpose  his  authority,  142,  143,  157-164;  Ibid.  1875,  part  i. 

but  must  leave  the  matter  to  the  pp.  127,  128;  the  American  consul 

tribunals  of  justice. — lb.     Foreign  at  Acapulco,  Ibid.  1587,  pp.  406-409; 

consuls  are  bound  to  appear  only  Ibid.  1878,  p.  580;  Ibid.  1879,  p.  802. 

in  the  Federal  courts ;  the  Consti-  As   to    immunity   of   consular   ar- 

tution  and  laws,  contemplating  the  chives,  see  vol.  xx.  Revue  de  Droit 

responsibility    of    consuls,    having  Int.  p.  505  ;  for  cases  of  asylum  in 

provided  these  tribunals,  in  exclu-  consulates,  see  case  of  Daniel  Poso, 

sion  of  the  state  courts,  in  which  For.  Rel.  U.  S.  1875,  part  i.  p.  57; 

they     shall     answer.  —  Villavaso's  see  also    Ibid.   1876,  p.  321;    Ibid, 

case,  I  Ibid.  406,  Wirt  (1820).    The  1877,  pp.  398,  399. 
President  cannot  interfere  in  such 


THE    RIGHT   OF    LEGATION  219 

igencies  of  commercial  intercourse  made  such  changes  either 
necessary  or  desirable.  The  effect  has  been  to  withdraw  for- 
eigners almost  completely  from  the  operation  of  the  local  laws, 
and  to  subject  them  to  the  jurisdiction  of  the  consuls  of  their 
respective  states.' 

The  extent  of  this  jurisdiction  is  defined,  and  its  exercise 
regulated,  by  treaties  with  the  several  Christian  powers  who 
maintain  consular  representatives  at  their  commercial  ports. 
These  treaties  are  carried  into  effect  by  the  municipal  laws  of 
the  signatory  states,  which  determine,  at  the  treaty  port,  or 
within  the  limits  of  the  treaty  concession,  the  extent  and 
character  of  the  consular  jurisdiction.  "This  jurisdiction  is 
subject,  in  civil  cases,  to  an  appeal  to  the  superior  tribunals  of 
their  own  country.  The  criminal  jurisdiction  is  usually  limit- 
ed to  the  infliction  of  pecuniary  penalties,  and,  in  offences  of  a 
higher  grade,  the  consular  functions  are  similar  to  those  of  a 
police  magistrate,  or  jiige  d' instruction.  He  collects  the  docu- 
mentary and  other  proofs,  and  sends  them,  together  with  the 
prisoner,  home  to  his  own  country  for  trial.'"     Such  jurisdic- 

1  Historically,  it  is  undoubtedly  Hale,  91    U.  S.  13.     The    exterri- 

true,  as  shown  by  numerous  author-  toriality  of  foreign  consuls  in  Tur- 

ities  quoted  by  Mr.  Warden  in  his  key  and  other  Mohammedan  coun- 

treatise  on  "  The  Origin  and  Nature  tries  is  entirely  independent  of  the 

of  Consular  Establishments,"  that  fact  of  diplomatic  representation, 

the  consul  was  originally  an  officer  and  is  maintained  by  the  difference 

of  large  judicial  as  well  as  commer-  of  law  and  religion,  being  but  inci- 

cial  powers,  exercising  entire  mu-  dental  to  the  fact  of  the  established 

nicipal  authority  over  his  country-  exterritoriality  of  Christians  in  all 

men  in  the  country  to  which  he  was  countries  not  Christian. — VII  Opin- 

accredited.     But  the  changed  cir-  ions  of  Attorney -General,  p.  342. 

cumstances of  Europe,  and  the  prev-  Rights   of  private    exterritoriality 

alencc  of  civil  order  in  the  several  having  ceased  to  exist  in  Christeu- 

Christian  states,  have  had  the  effect  dom,  foreign  consuls  have  ceased, 

of  greatly  modifying  the  powers  of  mostly,  to  be  municipal  magistrates 

the  consular  office ;  and  it  may  now  of  their  countrymen  there ;  but  they 

be  considered  asgenerally  true  that,  still  continue  not  only  internation- 

for  any  judicial  powers  which  may  al  agents  but   also  administrative 

be  vested  in  the  consuls  accredited  and  judicial  functionaries  of  their 

to  any  nation,  we  must  look  to  the  countrymen  in  countries  outside  of 

express   provisions  of  the  treaties  Christendom.  —  Ibid. ;    I    Ortolan, 

entered  into  with  that  nation,  and  285. 

to  the  laws  of  the  states  which  the         ""  Boyd's   Wheaton,   p.    152  ;    De 

consuls    represent.  —  Dainese    vs.  Steck,  Essai  sur  les  Consuls,  sec. 


220  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

tion  was  obtained  for  consuls  of  the  United  States  by  treaties 
made  at  different  times  with  Turkey,  China,  and  Japan,  and 
with  Siam  and  Madagascar.  Suitable  laws  have  been  passed 
by  Congress  to  give  effect  to  their  provisions.  By  the  act  of 
July  I,  1870,  the  operation  of  the  statute  was  extended  "to 
any  country  of  like  character  with  which  the  United  States 
may  hereafter  enter  into  treaty  relations.'"  The  jurisdiction 
conferred  upon  United  States  ministers  and  consuls  by  the 
act  of  June  22,  i860,  is  both  civil  and  criminal,  but  is  restrict- 
ed in  its  exercise  to  citizens  of  the  United  States.  Consuls 
are  authorized  to  hear,  and  finally  decide,  civil  causes  in  which 
the  amount  involved,  exclusive  of  costs,  does  not  exceed  five 
hundred  dollars.  When  the  amount  exceeds  that  sum,  or  in 
his  opinion  the  case  involves  legal  perplexities,  the  consul  is 
authorized  to  summon  not  less  than  two,  nor  more  than  three, 
citizens  of  the  United  States,  who  are  to  be  selected,  by  lot, 
from  a  list  previously  submitted  to  the  minister  and  approved 
by  him.  If  the  consul  and  his  advisers  concur  in  opinion,  their 
decision  is  final.     If  they  fail  to  agree,  or  if  the  amount  at  is- 

vii.  §§  30-40 ;  Pardessus,  Droit  Com-  depends  upon  treaties  and  laws  reg- 

mercial,  pt.  vi.  tit.  vi.  chap.  ii.  §  2  ;  ulating  such  jurisdiction.     The  in- 

chap.  V.  §§  1,2,3.     Aconsularcourt  structions  given  by  the  British  For- 

is  a  court  of  limited  jurisdiction,  eign  Office  to  their  consuls  in  the 

and  all  the  jurisdictional  facts  must  Levant,  in  1844,  as  quoted  by  Mr. 

be  alleged  in  the  libel  or  petition  ;  Phillimore,  do  not  claim  anything 

otherwise  it  will  be  insufficient. —  more. — Dainese7^.y.  Hale.gi  U.S.  13. 

Steamer  Spark  vs.  Lee  Choi  Chum,  Where  consular  courts  are  clothed 

1  Sawyer,  713.  with  criminal  jurisdiction,  the  rule 

'  Act  of  July  I,  1870  (§4129,  Rev.  applies  that  a  sentence  of  imprison- 

Stat.).    It  cannot  be  contended  that  ment  cannot  be  legally  executed  be- 

every  consul,  by  virtue  of  his  office,  yond  the  territorial  jurisdiction  of 

has  power  to  exercise  the  judicial  the  court  which  pronounced  it,  un- 

functions  claimed  in  this  case;  for  it  less  authority  there  to  execute  the 

is  conceded  that  this  is  not  the  case  sentence  is  conferred  by  the  legis- 

in  Christian  countries.     And  while,  lature.  —  Case  of  three  convicts  at 

on  the  other  side,  it  is  also  conced-  Smyrna,  XIV  Opinions  of  Attor- 

ed  that  in  pagan  and  Mohammedan  ney-General,  p.  522,  Williams  (1875). 

countries  it  is  usual  for  the  minis-  See   also   I    Dig.  Int.  Law,  §    125; 

ters  and  consuls  of  European  states  Foreign    Relations  of  the  United 

to  exercise  judicial  functions  as  be-  States,  1878,  p.  518;  and  an  article 

tween  their  fellow -subjects  or  cit-  by  Sir  Travers  Twiss  in  vol.  xxv.  of 

izens,  it  clearly  appears  that  the  ex-  the  Revue  de  Droit  International, 

tenttowhich  this  power  is  exercised  pp.  213-220. 


THE    RIGHT    OF    LEGATION  221 

sue  exceeds  five  hundred  dollars,  either  party  may  appeal  to 
the  minister.  In  China  and  Japan  the  decision  of  the  minister 
is  final  in  all  suits  when  the  amount  at  issue  does  not  exceed 
two  thousand  five  hundred  dollars.  Cases  involving  a  greater 
amount  may  be  appealed  to  the  United  States  Circuit  Court 
for  the  district  of  California,  whose  decision  in  the  case  is 
final. 

Consuls  are  also  authorized  to  hear  and  decide  criminal  cases, 
and,  in  the  event  of  conviction,  to  impose  penalties  of  not  more 
than  ninety  days'  imprisonment,  or  a  fine  not  exceeding  five 
hundred  dollars.  In  cases  not  involving  a  higher  penalty  than 
one  hundred  dollars'  fine,  or  sixty  days'  imprisonment,  their 
decision  is  final.  Whenever  the  consul  is  of  opinion  that  an 
important  question  of  law  is  involved  in  the  decision  of  a  case, 
or  deems  a  greater  punishment  necessary  than  he  is  authorized 
to  inflict,  he  may  summon  as  advisers,  in  cases  not  capital,  not 
less  than  one,  nor  more  than  four,  American  citizens  to  assist 
him  in  his  decision.  In  cases  involving  capital  punishment 
not  less  than  four  such  assistants  must  be  summoned.  In  the 
event  of  disagreement  the  case,  with  evidence  and  opinions,  is 
forwarded  to  the  minister  for  decision.  His  decision  is  final, 
except  in  cases  arising  in  China  and  Japan,  from  which  an  ap- 
peal may  be  taken,  as  in  civil  cases,  to  the  United  States  Cir- 
cuit Court  in  California.  The  jurisdiction  of  the  minister  is 
appellate,  except  in  capital  cases,  or  when  the  consul  is  a  party; 
and,  finally,  ministers  and  consuls  are  enjoined  to  exert  all  their 
oflficial  influence  to  induce  litigant  parties  to  adjust  their  differ- 
ences by  arbitration.' 

A  somewhat  similar  jurisdiction  is  exercised  by  the  consuls 
of  other  powers  in  the  East." 

'  Sections    4083  -  4128   Revised  §  223;  Hall,  p.  321,  note  ;  Lawrence, 

Statutes  of  the  United  States.  Int.  Law,  §  148;  Treaties  and  Con- 
Mi    Phillimore,    pp.    312-316;  ventionsof  the  United  States,  1776- 

Walker,   Sci.    Int.   Law,   p.  230;   I  1887,  note  on  consuls,  pp.   1279- 

Halleck,  pp.  330-343;    Bluntschli,  1285. 

§  269;  Heffter,  §§  244-248 ;  I  Twiss, 


222  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

References.  Most  existing  worlcs  upon  the  subject  of  diplomacy  are 
of  foreign  origin.  Many  of  them  either  appeared  originally  in  French, 
or  are  accessible  in  French  translations.  The  most  important  of  these 
are,  for  the  period  of  Grotius,  Nys,  "  Origines  de  la  Diplomatic,"  and, 
for  its  later  history  and  practice,  Ch.  de  Martens,  "  Le  Guide  Diploma- 
tique," and  "Causes  Celebres  du  Droit  des  Gens  "  (1827),  and  the  "  Nou- 
velles  Causes  Celebres,"  published  by  the  same  author  in  1844.  See  also 
the  "  Traite  Complet  de  Diplomatic,"  par  un  Ancien  Ministre  ;  Schuyler, 
"American  Diplomacy";  and  the  "Rights  and  Duties  of  Diplomatic 
Agents,"  by  E.  C.  Grenville- Murray.  The  following  works  upon  the 
functions  and  duties  of  consuls  may  be  consulted  with  advantage  :  "  Dic- 
tionnaire  ou  Manuel  Lexique  du  Diplomate  et  du  Consul,"  by  Baron  F. 
de  Cussy;  Miltitz,  "Manuel  des  Consuls";  Borel,  "  De  I'origine  et  des 
Fonctions  des  Consuls";  Mensch,  "Manuel  pratique  de  Consulat";  Neu- 
mann, "  Handbuch  des  Consulatswesens  " ;  and  Henshaw's  and  War- 
den's works  on  the  duties  of  consuls.  As  the  exercise  of  consular  juris- 
diction is  based  upon  treaty  stipulations,  it  is  necessary,  in  conducting 
inquiries  upon  this  subject,  to  consult  the  treaties  themselves.  For 
this  purpose,  see  the  collections  referred  to  at  the  end  of  chap.  viii. 
For  a  very  full  account  of  the  diplomatic  and  consular  policy  of  the 
United  States,  see  Schuyler,  "  American  Diplomacy  and  the  Further- 
ance of  Commerce."  For  a  general  discussion  of  the  subject  of  consu- 
lar jurisdiction,  see  vol.  x.  Revue  de  Droit  International,  pp.  285-322; 
xi.  ibid.  pp.  45-79;  XV.  ibid.  pp.  88-91,  279-281,  502-503;  xxvii.  ibid.  pp. 
313-326;  I  Twiss.  §§  223,  253-264;  II  Phillimore,  §§  272-277;  IV  Pra- 
dier-Fodere,  §§  2 122-2 138;  Bluntschli,  §§  216,  269;  Heffter,  §247;  I 
Halleck,  pp.  331-347;  Dana's  Wheaton,  §  no,  note  68;  II  Int.  Law 
Digest,  §  125. 


CHAPTER    VIII 

TREATIES    AND    CONVENTIONS  :    EXECUTION,    RATIFICATION, 
INTERPRETATION 

Power  of  a  State  to   Make  Contracts  and  Agreements. 

In  its  capacity  as  a  body  politic  a  state,  as  will  presently  be 
seen,  has  many  of  the  attributes  of  a  corporation,  including 
the  power  to  make  contracts  and  agreements.  Sovereign 
states,  however,  have  the  added  power,  not  possessed  by  indi- 
viduals or  corporations,  of  entering  into  a  class  of  contractual 
obligations  called  public  treaties  or  conventions.  Contracts, 
in  the  ordinary  acceptation  of  that  term,  may  be  made  by  a 
state  with  private  persons,  whether  citizens  or  aliens,  or  with 
public  or  private  corporations,  but  these  instruments  are  not 
treaties,  nor  are  they,  in  all  respects,  the  same  as  contracts  be- 
tween private  persons  or  corporations.' 

Purpose  of  Treaties.  Treaties  may  therefore  be  defined 
as  compacts  or  agreements,  entered  into  by  sovereign  states 
for  the  purpose  of  increasing,  modifying,  or  defining  their  mut- 
ual duties  and  obligations.^  To  secure  the  observance  of  the 
generally  accepted  rules  of  international  law,  treaties  are  not 
necessary,  certainly  among  Christian  states.  They  become  so 
only  when  states  find  it  either  necessary  or  expedient  to  amend 
or  modify  their  existing  obligations,  to  define  usages  that  are 

'  Kliiber,  §   141;    Heffter,  §81;  and  those  between  a  sovereign  and 

Dana's  Wheaton,  §  252  ;  Vattel,  liv.  a   private   person,   are   not  public 

ii.  ch.  xii.  §§  152,  153;    I   De  Mar-  treaties." — Vattel,  liv.  ii.  chap.  xii. 

tens,  §§  46,  47.    "  Public  treaties  can  §154. 

only  be  made  by  the  superior  pow-         ^  Vattel,  liv.  ii.  ch.  xii.  §  152;  II 

ers,  by  sovereigns  who  contract  in  Ferguson,  §  130;  I  De  Martens,  § 

the  name  of  the  state.     Thus  con-  47;  Woolsey,  §  loi ;  I  Twiss,  §§  224- 

ventions  made  between  sovereigns  231  ;  1  Halleck,  pp.  227-229. 
respecting  their  own  private  affairs, 


224  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

not  clear,  to  secure  concerted  action  looking  to  the  abandon- 
ment of  unjust  or  oppressive  practices,  or  to  obtain  general 
sanction  in  behalf  of  improved  methods,  or  the  general  ac- 
ceptance of  desirable  reforms. 

The  Right  of  Making  Treaties.  The  right  of  making 
treaties  is  one  of  the  essential  attributes  of  sovereignty,  and 
there  can  be  no  surer  test  of  a  semi -sovereign  or  dependent 
state  than  is  deduced  from  the  fact  that  its  ability  to  enter 
into  treaty  relations  has  been  abridged  or  destroyed.  Depend- 
ent states,  however,  may  retain  the  right,  to  a  greater  or  less  de- 
gree, depending  upon  the  number  and  character  of  the  sovereign 
rights  which  they  have  yielded,  or  of  which  they  have  been 
deprived.  They  frequently  retain  the  right  of  making  treaties 
of  commerce  and  extradition,  postal  and  customs  conventions, 
and,  in  some  cases,  treaties  of  alliance  and  naturalization.  The 
existence  of  such  powers,  however,  would  be  inconsistent  with 
any  considerable  degree  of  dependence  on  the  part  of  the 
semi -sovereign  state.  In  the  German  Confederation,  as  reor- 
ganized in  1815,  a  considerable  degree  of  treaty-making  power 
was  reserved  to  the  component  states.  The  present  Ger- 
man empire  is  a  closer  confederation,  the  imperial  govern- 
ment having  sole  power  to  conclude  treaties  of  peace  or 
alliance,  or  treaties  of  any  kind  for  political  objects,  com- 
mercial treaties,  conventions  regulating  questions  of  domicile, 
emigration,  and  postal  affairs,  protection  of  copyright,  and 
consular  matters,  extradition  treaties,  and  other  conventions 
connected  with  the  administration  of  civil  or  criminal  law.' 
The  states  of  the  American  Union  are  forbidden  to  enter 
into  treaties  with  foreign  states  ;  or  to  make  agreements 
with  other  states  of  the  Union,  except  with  the  consent  of 
Congress. 

Power  of  a  State  to  Enter  into  Contracts  with  Individ- 
uals and  Corporations.  It  has  been  seen  that  a  state,  in  its 
capacity  as  a  body  politic,  has  many  of  the  attributes  of  a 
corporation,  including  the  power  to  make  contracts  and  agree- 

'  Hall,  p.  22  ;  Hertslet,  Map  of  Wheaton,  §  252  ;  I  Halleck,  p.  227  ; 
Europe  by  Treaty,  p.  1931 ;  Dana's      II  Phillimore,  chap.  vi. 


TREATIES  AND   CONVENTIONS 


22; 


ments.  Contracts  in  the  ordinary  acceptation  of  the  term  may 
therefore  be  rhade  by  a  state  with  private  persons,  whether 
citizens  or  aHens,  or  with  public  or  private  corporations.  If 
the  terms  of  such  undertakings  be  not  Hved  up  to  by  the  state, 
however,  the  individual  who  is  wronged  by  such  failure  in  re- 
spect to  performance  has  not  the  same  remedy  that  is  applied 
where  all  the  parties  to  the  agreement  are  private  persons  — 
this,  for  the  reason  that  sovereign  states  will  not,  as  a  rule, 
permit  themselves  to  be  sued  in  their  own  courts  by  private 
individuals,  whether  their  own  citizens  or  aliens.  From  the 
nature  of  the  case  the  courts  of  the  individual's  state,  he  being 
an  alien  in  respect  to  the  government  in  default,  are  without 
jurisdiction  to  entertain  a  cause  of  action  to  which  another 
sovereign  state  is  a  party.  Permission  to  institute  such  suits  is 
sometimes  conferred  upon  courts  endowed  with  jurisdiction 
for  the  purpose;  but  the  existence  of  such  a  tribunal  is  not 
presumed  in  any  state.'     If  the  person  wronged,  however,  be 


■  The  United  States  by  the  es- 
tablishment of  the  Court  of  Claims 
has  given  express  statutory  permis- 
sion for  suits  to  be  brought  against 
it;  the  cases  in  which  such  suits 
will  lie  being  determined  by  the 
statute  creating  that  tribunal. — Sec- 
tions 1059  to  1093  Revised  Stat- 
utes of  the  U.  S.  and  the  Acts  of 
March  3,  1883(22  Statutes  at  Large, 
485);  March  3,  1887  (24  Ibid.  406) ; 
June  27,  1898,  (30  Ibid.),  and  July  i, 
i898(Ibid.),  amendatory  thereof.  In 
conformity  to  the  principles  of  re- 
ciprocity this  privilege  is  extended 
to  aliens  in  the  following  cases: 
By  the  proceeding  known  as  a  "pe- 
tition of  right,"  the  British  Govern- 
ment accords  to  citizens  of  the 
United  States  the  right  to  prose- 
cute claims  against  it.  According- 
ly, British  subjects,  if  otherwise  en- 
titled, may  recover,  by  process  in 
our  Court  of  Claims,  the  proceeds 
of  captured  and  abandoned  proper- 
ty, a  privilege  granted  only  to  the 
citizens  or  subjects  of  such  foreign 

15 


governments  as  accord  to  our  citi- 
zens the  right  to  prosecute  claims 
against  such  governments  in  their 
courts. — U.  S.  vs.  O'Keefe,  11  Wal- 
lace, 178;  Carlisle  vs.  U.  S.  16  Ibid. 
147.  Under  the  laws  of  Prussia 
the^i'^^  represents  the  state,  and 
any  subject  may  sue  the  fiscus  on 
contract  before  a  court  having  like 
jurisdiction  in  actions  between  in- 
dividuals. Judgment  may  be  tak- 
en in  such  suit  and  execution  issue. 
No  discrimination  is  made  against 
foreigners,  save  that  they  are  re- 
quired to  give  security  for  costs. 
Held,  that  an  alien,  a  native  of 
Hanover,  which  country  had  been 
incorporated  into  Prussia,  was  en- 
titled to  sue  in  the  Court  of  Claims 
within  the  provisions  of  the  act  of 
July  27,  1868  (15  Stat.  243),  which 
permitted  the  citizens  or  subjects 
of  any  government  which  accords 
to  citizens  of  the  United  States  the 
right  to  prosecute  such  claims  in 
her  courts,  to  recover  the  proceeds 
of  captured  or  abandoned  prop- 


226 


THE    ELEMENTS   OF    INTERNATIONAL   LAW 


an  alien  he  may  present  his  claim  through  the  foreign  office  of 
the  state  of  which  he  is  a  citizen  or  subject. 

The  Treaty-making  Power.  That  authority  in  a  state  in 
whom  the  right  of  entering  into  treaty  relations  is  vested  is 
called  the  treaty-making poiver.  In  states  having  a  monarchi- 
cal form  of  government  the  treaty-making  power  is  one  of  the 
prerogatives  of  the  crown  ;  in  states  having  republican  institu- 
tions it  is  exercised  by  the  executive,  either  directly  or  subject 
to  the  approval  of  some  branch  of  the  legislative  department 
of  the  government.'  This  is  the  case  in  the  United  States. 
The  constitution  and  laws  of  every  state  define  the  treaty- 
making  power,  and  determine  what  restrictions,  if  any,  are  to 
be  placed  upon  its  exercise ;  and  any  agreements  undertaken 
in  excess  of  these  limitations  are  unauthorized  and  void.^ 


erty.'^  —  Brown's  case,  5  Court  of 
Claims  Rep.  571.  The  Belgian 
Government,  by  its  system  of  juris- 
prudence, holds  the  government 
amenable  before  the  courts  as  an 
ordinary  debtor,  and  accords  to  cit- 
izens of  the  United  States  the  same 
right  to  prosecute  claims  against  it 
in  its  courts  as  is  accorded  to  indi- 
viduals as  between  themselves.  A 
subject  of  Belgium  may.  therefore, 
maintain  a  suit  in  the  Court  of 
Claims. — De  Give's  case,  7  Ibid. 
517.  By  the  laws  of  Switzerland  a 
private  citizen  may  maintain  a  suit 
against  the  state  in  the  federal  tri- 
bunal, if  the  subject  of  litigation  is 
of  the  value  of  3000  francs.  This 
right  taken  in  connection  with  the 
provisions  of  the  treaty  of  Novem- 
ber 25,  1850,  securing  to  citizens  of 
the  United  States  liberty  to  pros- 
ecute and  defend  their  rights  before 
courts  of  justice,  as  native  born  citi- 
zens, permits  a  citizen  of  Switzerland 
to   maintain  an  action  before  the 

*  The  example  of  Prussia  and  other 
German  states  in  subjecting  the  govern- 
ment to  suits  at  the  instance  of  private 
persons  led  to  the  establishment  of  the 
Court  of  Claims. — Brown's  case,  5  Court 
of  Claims  Rep.  571. 


Court  of  Claims. — Lobsiger's  case,  5 
Ibid.  687.  In  France  a  French  sub- 
ject maj^  sue  the  govern  ine-nt  for  real 
and  personal  property,  and  as  Amer- 
ican citizens  aregiv^en  the  same  privi- 
lege subject  to  the  giving  of  security, 
French  citizens  may  sue  in  the  Court 
of  Claims.  —  Rothschild's  case,  6 
Ibid.  204;  Dauphin's  case,  Ibid.  221. 

'  Bluntschli,  §§  404,  404  bis ;  I 
Halleck,  p.  229;  Kliiber,  §  142; 
Heffter,  §§  82,  84;  Dana's  Wheaton, 
§  265;  Vattel,  liv.  ii.  ch.  xii.  §  154. 

-  I  Halleck,  pp.  229-234;  Hefifter, 
§§  82-84 ;  Dana's  Wheaton,  §§  265, 
266,  note  139.  "  Sovereigns  treat 
with  each  other  through  the  me- 
dium of  agents  or  proxies,  who  are 
invested  with  sufficient  powers  for 
the  purpose,  and  are  commonly 
called  plenipotentiaries.  To  their 
office  v/e  apply  all  the  rules  of  nat- 
ural law  which  respect  things  done 
by  commission.  The  rights  of  the 
proxy  are  determined  by  the  in- 
structions that  are  given  him:  he 
must  not  deviate  from  them;  but 
every  promise  which  he  makes  in 
the  terms  of  his  commission,  and 
within  the  extent  of  his  powers,  is 
binding  on  his  constituent." — Vat- 
tel, liv.  ii.  chap.  xii.  §  156. 


TREATIES  AND   CONVENTIONS  22/ 

Nature  and  Extent.  In  the  exercise  of  its  treaty-making 
power,  a  state  may  acquire  or  dispose  of  territory,  recognize 
the  independence  of  new  states,  create  servitudes,  enter  into 
alliances,  or  confer  special  privileges  upon  certain  classes  of 
aliens  with  respect  to  trade,  residence,  or  occupation  within  its 
territories ;  it  may  also  rectify  boundaries,  guarantee  the  terri- 
torial integrity  of  other  states,  provide  for  the  neutrality  of 
straits,  ship-canals,  and  navigable  rivers,  and  do  any  other  acts 
not  inconsistent  with  its  sovereignty.'  The  right  of  a  state  to 
make  contracts  and  agreements  with  individuals  is  subject, 
however,  to  the  implied  limitation  that  real  property  cannot 
be  acquired  by  one  state  within  the  territorial  limits  of  an- 
other, without  the  consent  of  such  state  shall  first  have  been 
obtained  by  treaty  stipulation.  This  for  the  reason  that  the 
occupation  and  possession  of  such  lands  would  necessitate  an 
exercise  of  sovereignty  within  the  territory  of  the  state  within 
which  such  lands  are  situated." 

Conditions  Essential  to  the  Validity  of  Treaties.  To  the 
validity  of  a  treaty  it  is  essential:  ist.  That  the  contracting 
parties  should  possess  the  power  to  enter  into  treaty  engage- 
ments. 2d.  The  formal  consent  of  the  parties  must  be  given, 
and  this  consent  must  be  mutual,  reciprocal,  and  free.'  3d. 
The  subject  of  stipulation  must  not  be  opposed  to  morality 
and  justice. 

{a.)  Power  of  the  Contracting  Parties.  States  which  are 
parties  to  a  proposed  agreement  must  possess  full  treaty-mak- 
ing power  as  to  its  subject-matter.  Dependent  states  cannot 
enter  into  agreements  which  are  not  authorized  by  their  de- 

'Bluntschli,  §§  404-408;   I  Hal-  enter  upon  the  territories  of  an- 

leck,  p.  227;   Kliiber,  §  146;  I  De  other  or  claim  any  right  whatever 

Martens,  §  56;  Lawrence,  §  152;  II  therein.  — The  Chiriqui    Improve- 

Phillimore,  chap.  vi.  ment  Company,  IX  Opin.  Att.-Gen. 

■^The  United  States  Government  p.  286,  Black  (1859). 
cannot  purchase  a  grant  of  land  in,         ^  For  the  exceptional  case  of  trea- 

or  concession   of  a   right  of  way  ties  of  peace,  in  which  the  action 

over,  the  territories  of  another  na-  of  one  party  is  always  constrained, 

tion  as  could  an  individual  or  pri-  see  paragraph  b,  post,  and  the  ar- 

vate  corporation,  since,  by  the  law  tide  so  entitled  in  the  chapter  re- 

of  nations,  one  government  cannot  fating  to  the  laws  of  war. 


228  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

pendent  condition;  and  states  which  are  members  of  a  con- 
federation cannot  treat  upon  subjects  which  are  reserved  to 
the  central  government  by  the  constitution  of  the  confeder- 
acy. In  the  same  manner  the  agents  who  are  empowered  to 
negotiate  treaties  may  not  exceed  the  Hmits  laid  down  in 
their  instructions  or  full  powers.  Any  agreements  entered 
into  by  them  in  excess  of  their  authority  are  void,  and  rati- 
fication of  them  may  be  refused.'  Such  unauthorized  agree- 
ments have  been  entered  into  at  different  times  in  the  past, 
usually  by  military  or  naval  commanders.  They  are  called 
sponsions,  and  are  invalid  unless  approved  by  the  sponsor's 
government.^ 

(^.)  Consent  of  the  Contracting  Parties.  The  consent  of  the 
participating  states  must  be  expressly  and  freely  given.  It 
must  also  be  reciprocal ;  and  one  state,  by  its  ratification  or 
approval  of  a  treaty,  cannot  constrain  another  to  ratify  it,  or 
to  regard  its  provisions  as  binding.  In  contracts  between  in- 
dividuals, if  either  party  act  under  constraint,  the  resulting 
contract  is  void.  In  the  preparation  of  certain  treaties,  how- 
ever, especially  in  treaties  of  peace  and  in  a  class  of  agree- 
ments arising  in  time  of  war  called  cartels  and  capitulations, 
one  of  the  contracting  parties  acts  under  constraint  of  the 
most  oppressive  and  humiliating  kind  ;  but  this  does  not  have 
the  effect  of  invalidating  the  treaty.  Private  contracts  may 
be  set  aside  on  the  ground  of  the  influence  of  fraud  and  unfair 
dealing,  arising  from  their  manifest  injustice  and  want  of  mut- 
ual advantage.  But  no  inequality  of  advantage,  no  lesion,  can 
invalidate  a  treaty.^ 

{c.)  Possibility  of  Execution.     The  conduct  of  states,  like 

'I    Halleck,    pp.    227-230;    De  schli,  §  405  ;  I  De  Martens,  §  48;  II 

Martens,  Precis,  §  48;  Vattel,  liv.  Pradier-Fodere,  §§    1 066-1 068  ;    II 

ii.ch.xii.§  156;  Kliiber,  §  142;  Heff-  Ferguson,  p.  20. 
ter,  §  84;    Bluntschli,  §§  404,  404         MI    Phillimore,    §§   49,   50;    De 

bis;  II  Phillimore,  §  48;  Pomeroy,  Martens,  Precis,  §§  49-51  ;  Kliiber, 

§§  260-263 ;  Hall,  §  108 ;  II  Pradier-  §  143  ;  Grotius,  liv.  iii.  ch.  xx. ;  Heff- 

Fodere,  §§  io58a-io68.  ter,  §85;  Bluntschli,   §§   407-409; 

'•^  I  Halleck,  p.  230;  Kliiber,  §  142;  Pomeroy,  §§  273-279;  Hall,  §  108; 

Grotius,  liv.  ii.  ch.  cv.  §§  3,  16,  17;  II  Pradier-Fodere  §§  1069-1079. 
Vattel,  liv.  ii.  ch.  iv.  §  211  ;  Blunt- 


TREATIES   AND   CONVENTIONS  229 

that  of  individuals,  is  regulated  by  well-known  moral  stand- 
ards, from  which  they  are  bound  not  to  depart.  They  are, 
therefore,  prevented  from  making  that  a  subject  of  treaty 
stipulation  the  execution  of  which  is  physically  or  morally 
impossible.  Heffter  holds  those  conditions  to  be  morally  im- 
possible which  are  repugnant  to  moral  order,  or  are  opposed 
to  the  free  development  of  nations.'  Such  would  be  stipula- 
tions tending  to  the  destruction  of  a  sovereign  state,  or  the 
establishment  of  slavery.  The  same  may  be  said  of  provisions 
which  are  opposed  to  previous  treaties  with  other  powers,  or 
which  are  prejudicial  to  the  sovereign  rights  or  powers  of  a 
third  state. 

Binding  Force  of  Treaties.  Treaties  entered  into  in  con- 
formity to  these  conditions  are  binding  upon  all  the  signatory 
parties,  and  they  continue  in  force,  whatever  changes  may 
take  place  in  the  internal  affairs  of  the  participant  states. 
Changes  of  government  in  no  way  affect  their  binding  force, 
and  they  cease  to  be  obligatory  only  when  states  which  are 
parties  to  them  cease  to  exist.  Their  inviolability,  even  when 
not  especially  guaranteed,  is  the  first  law  of  nations.^  Obliga- 
tions created  by  treaty  are  of  the  most  sacred  character :  their 
violation  operates  to  release  the  other  signatory  party  from 
his  obligation,  and,  if  persisted  in,  or  not  atoned  for,  is  re- 
garded as  constituting  a  just  cause  for  war.' 

Manner  of  Negotiating  Treaties.  It  has  been  seen  that 
the  right  to  make  treaties  is  an  essential  attribute  of  sover- 
eignty, and  that  the  power  to  enter  into  such  undertakings  is 


'Heffter,  §  83;    Kliiber,    §   144;  and  if  mankind  be  not  wilfully  de- 

Pomeroy,  §§  280-286;    Hall,  §  108;  ficient  in  their  duty  to  themselves, 

I  De  Martens,  §  53  ;  H  Phillimore,  infamy  must  ever  be  the  portion  of 

chap.  vi. ;  Lawrence,  §  154.  him  who  violates  his  faith." — Vat- 

^"  The  faith  of  treaties — that  firm  tel,  liv.  ii.  chap.  xv.  §220. 

and  sincere  resolution,  that  invari-  ^  Vattel,   liv.   ii.  ch.  xiv.   §§   163, 

able  constancy  in  fulfilling  our  en-  229-234;  Kliiber,  §§  145,  153;  Heff- 

gagements,  of  which  we  make  pro-  ter,  §  94;  Bluntschli,  §§  416-424;  I 

fession  in  a  treaty — is  therefore  to  Halleck,    pp.    237-244;    H    Philii- 

be  held  sacred  and  inviolable  be-  more,  §§  52-55;   Hall,  §§   114,  115; 

tween  the    nations   of  the   earth,  I  De  Martens,  §  54 ;  Lawrence,  Int. 

whose  safety  and  repose  it  secures ;  Law,  §  1 54. 


230  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

vested,  by  the  constitution  of  each  state,  in  some  branch  of  its 
government,  designated  for  that  purpose,  called  the  treaty- 
making  power.  It  is  by  this  treaty  -  making  power,  there- 
fore, acting  directly,  or  by  its  duly  authorized  agents,  that 
international  agreements  are  negotiated.'  In  certain  cases, 
however,  the  preparation  of  important  treaties  is  intrusted  to 
international  deliberative  bodies  known  as  congresses  or  con- 
ferences. 

Congresses  and  Conferences.  These  are  bodies  convened 
for  the  purpose  of  discussing  questions  of  general  interest,  of 
adjusting  international  controversies,  and  of  reconciling  seri- 
ous differences  of  opinion.  They  are  composed  of  diplomatic 
agents  of  appropriate  rank  representing  the  states  in  whose 
relations  the  difference  has  arisen,  together  with  the  repre- 
sentatives of  those  powers  whose  interests  are  less  directly 
affected,  or  compromised,  by  an  existing  situation,  and  who, 
being  to  some  extent  disinterested,  are  for  that  reason  able 
to  suggest  methods  of  amicable  adjustment.  Congresses  are 
called  when  the  relations  between  two  or  more  states  have 
become  so  strained  as  to  foreshadow  the  outbreak  of  war,  or, 
after  hostilities  have  ceased,  with  a  view  to  effect  a  settlement 
of  the  questions  to  which  the  war  has  given  rise.  It  is  their 
function  to  ascertain  the  facts  constituting  a  particular  cause  of 
difference,  to  discuss  appropriate  methods  of  relief,  to  suggest 
concessions,  and,  when  an  agreement  has  been  reached,  to  make 
it  operative  by  applying  an  appropriate  remedy  to  the  state  of 
affairs  which  has  given  occasion  for  the  meeting  of  the  congress. 

The  conclusions  of  a  congress  or  conference  are  generally  em- 
bodied in  treaties ;  at  times,  however,  they  are  expressed  in 
statements  of  international  policy  which  have  become  known 
as  "  declarations."  Of  the  former  class  the  treaty  of  Berlin, 
framed  by  the  Congress  of  Berlin  in  1878,  is  an  example  ;  of 
the  latter  the  Declaration  of  Paris,  prepared  by  the  Congress 
of  Paris  in  1856,  in  respect  to  the  usages  of  war  at  sea,  and  the 


»  Hefifter,  §§86-89;  Kluber,§  147;      1084-1099;  II  Dig.  Int.  Law,  §§  130- 
II  Pradier-Fodere,  §§   1061-1065,      132;  Lawrence,  §  152;  Hall,  §  109. 


TREATIES   AND   CONVENTIONS 


251 


Geneva  Conventions  of  1864  and  1868,  in  respect  to  the  treat- 
ment of  the  wounded  in  time  of  war,  are  illustrations.' 

Congresses  receive  their  names,  in  some  cases,  from  the 
places  in  which  their  sessions  are  held,  in  others  from  the 
subjects  submitted  to  them  for  deliberation.  If  the  agree- 
ment reached  is  one  to  which  the  general  consent  of  nations 
is  desired,  so  as  to  give  it  the  force  of  a  rule  of  international 
law,  a  clause  prescribing  the  form  and  conditions  of  acceptance 
is  embodied  in  the  treaty  or  declaration  in  which  it  is  contained.^ 


*  Vattel,  11 V.  ii.  ch.  xviii.  §  330; 
II  Ferguson,  Int.  Law,  §  159.  The 
terms  "congress"  and  "confer- 
ence "  are  not  quite  synonymous, 
although  their  powers  and  purposes 
are  substantially  the  same.  Con- 
ferences are  somewhat  more  in- 
formal and  tentative  in  character 
than  congresses;  if  settlements  are 
reached  by  them  they  are  less  fre- 
quently embodied  in  formal  trea- 
ties or  declarations  than  are  those 
of  general  congresses.  In  the  early 
part  of  the  nineteenth  century  the 
distinction  between  the  two  bodies 
was  believed  to  consist  in  the  pres- 
ence or  absence  of  reigning  sover- 
eigns ;  their  presence  giving  to  a 
particular  body  the  character  of  a 
congress;  this  distinction,  however, 
is  no  longer  maintained. 

^  Among  the  more  important 
congresses  which  have  been  called 
in  Europe,  since  the  close  of  the 
Thirty  Years'  War,  the  following 
are  the  most  important:  the  Con- 
gress of  the  Pyrenees,  in  1659,  for 
the  settlement  of  certain  south  Eu- 
ropean questions  ;  that  of  Oliva,  in 
1660,  for  the  settlement  of  diflfer- 
ences  existing  among  the  north  Eu- 
ropean powers;  that  at  Aix-la-Cha- 
pelle,  in  1668,  which  terminated  the 
wars  between  France  and  Spain  in 
the  Netherlands  ;  that  of  Nime- 
guen,  in  1678,  which  terminated 
the  war  between  Holland  and  its 
allies  against  France  ;  that  of  Rys- 


wick,  in  1697  ;  at  Paris,  in  1763 ;  and 
at  Vienna,  in  1815,  which  terminat- 
ed general  European  wars;  that  at 
Aix-la-Chapelle,  in  1818,  which  ter- 
minated the  military  occupation  of 
France,  which  had  been  authorized 
by  the  treaties  of  peace  in  1815; 
that  at  Vienna,  in  1822,  at  which  it 
was  decided  to  intervene  in  the  af- 
fairs of  Greece.  Two  important 
European  congresses  have  been 
held  since  1850:  that  at  Paris,  in 
1856,  in  respect  to  the  usages  of 
maritime  war,  and  that  at  Berlin, 
in  1878,  to  efifect  a  settlement  of 
the  questions  to  which  the  war  be- 
tween Russiaand  Turkey  had  given 
rise.  On  the  American  continent 
two  congresses  have  been  called 
since  the  beginning  of  the  present 
century:  one  at  Panama,  in  1826, 
called  on  account  of  the  declara- 
tion of  the  Monroe  Doctrine  by  the 
United  States;  the  other,  a  Con- 
gress of  American  Republics,  called 
by  the  United  Statesat  Washington, 
in  1889  and  1890,  to  discuss  ques- 
tions connected  with  the  commer- 
cial, administrative,  and  interna- 
tional relations  of  the  states  of  the 
Western  continent.  Among  the 
more  important  conferences  of  re- 
cent times  may  be  noted  those  at 
London,  in  1827  and  1837,  for  the 
discussion  of  the  Eastern  question 
and  the  pacification  of  the  Levant; 
those  held  in  London,  in  1835  and 
1839,  in  connection  with  aflfairs  in 


232  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Preparation  and  Execution.  In  former  times  treaties  were 
frequently  negotiated  by  sovereigns  in  person  ; ' .  at  present  they 
are  usually  entered  into  by  ministers  or  plenipotentiaries,  se- 
lected for  the  purpose  by  the  proper  municipal  authority,  and 
furnished  with  special  full  powers  to  act  in  behalf  of  their  re- 
spective governments  in  the  preparation  and  signature  of  the 
treaty.  Preliminary  negotiations  are  usually  necessary,  to  de- 
termine the  place  and  time  of  meeting  and  the  conditions  of 
representation.  In  the  preparation  of  treaties  of  peace,  or  of 
agreements  preliminary  to  such  treaties,  the  neutrality  of  the 
place  is  secured  by  proper  guarantees,  and  the  personal  secu- 
rity of  the  ambassadors  is  carefully  provided  for,  not  only  at 
the  sessions  of  the  conference,  but  in  their  journeyings  to  and 
from  the  place  of  meeting.  If  the  proposed  agreement  be  one 
of  general  interest,  the  questions  to  be  discussed  are  submitted 
to  the  powers  in  advance,  the  limits  of  negotiation  are  to  some 
extent  defined,  and  the  number  and  character  of  representa- 
tives from  each  state  is  determined  upon. 

At  the  time  appointed  the  representatives  assemble  and  ex- 
change their  credentials  and  full  powers.  If  several  states  are 
represented  the  conference  is  usually  presided  over  by  the 
principal  minister  of  foreign  affairs  of  the  state  in  whose  ter- 
ritory its  sessions  are  held,  or  by  the  representative  of  the 
government  with  which  the  project  originated.  If  need  be, 
rules  of  procedure  are  agreed  to  at  a  preliminary  session. 
Each  power  represented  has  a  right  to  be  heard,  at  length, 

the  Netherlands ;  those  held  in  Vi-  in  1867,  in  respect  to  the  indepen- 

enna,  in  1853,  1854,  1855,  and  1856,  dence  of  the  Grand  Duchy  of  Lux- 

in  respect  to  the  existing  difficulties  enibourg;    and  those  of  1884  and 

in  southeastern  Europe,  those  in  1885,   in   Berlin,  in  respect  to  the 

Copenhagen,  in  1856  and  1857,  in  civilization    and    development    of 

respect   to  the   navigation  of   the  certain  portions  of  Africa. —  Pra- 

Danish   Sounds;    those    called    in  dier-Fodere,  Droit  Int.  Pub.  vol.  vi. 

London,  in   i860  and   1864,10  dis-  pp.  229-289. 

cuss  the  affairs  of  Greece  and  the         '  The  Holy  Alliance  of  Septem- 

discontinuance  of  the  protectorate  ber  14  (26),  181 5,  was  signed  by  the 

over  the  Ionian  Islands  ;  that  held  emperors   of  Austria   and    Russia 

in   London,  m   1864,  in  respect  to  and  the  King  of  Prussia.     See  also 

the  settlement  of  the   Schleswig-  II  Pradier-Fodere,  §§  1061-1065. 
Holstein  question ;  that  of  London, 


TREATIES   AND   CONVENTIONS  233 

upon  all  projects  submitted  for  discussion  which  in  any  way- 
affect  its  interests.  The  proceedings  of  each  session  are  re- 
duced to  writing,  and  are  properly  authenticated,  and  the  nego- 
tiation continues  until  an  agreement  has  been  reached,  or  until 
the  impossibility  of  reaching  such  an  agreement  has  become 
apparent.  If  questions  are  submitted  to  vote,  nothing  short 
of  unanimous  consent  is  sufficient  to  carry  a  measure  of  prime 
importance.  After  an  essential  article  or  stipulation  has  been 
adopted,  the  majority  rule  may  prevail  in  the  decision  of  ques- 
tions of  detail,  or  in  accessory  stipulations  of  minor  importance.' 
Language  Used  in  the  Preparation  of  Treaties.  The 
language  used  in  the  preparation  of  treaties  is  subject  to  no 
fixed  rule.  Each  party  may,  of  right,  insist  upon  the  use  of 
its  own  in  the  preparation  of  treaties,  as  in  every  other  public 
act,  or  a  neutral  language  may  be  adopted.  In  the  former 
case  there  would  be  as  many  original  copies  as  there  were 
participant  states.  This  would  be  true  in  form  only,  and  not 
in  fact,  since  one  of  these  originals  would  furnish  a  model 
upon  which  the  translation  of  the  others  would  be  based. 
Latin  was  formerly  used,  as  a  convenient  and  generally  un- 
derstood neutral  language  ;  it  is  still  the  official  language  of 
the  Holy  See.  Towards  the  close  of  the  seventeenth  century 
it  was  replaced  by  the  French,  which  became  the  general  dip- 
lomatic language  of  Europe  and  America.  It  still  retains  that 
character  to  a  higher  degree  than  any  other.  Since  the  begin- 
ning of  this  century  the  greater  part  of  the  treaties  which  have 
been  negotiated  in  Europe  have  been  drawn  up  and  signed  in 
French.  When  France  is  one  of  the  signatory  parties,  how- 
ever, a  clause  is  usually  inserted  to  the  effect  that  the  use  of 
that  language  is  not  to  be  regarded  as  constituting  a  prece- 
dent. Treaties  to  which  England  or  the  United  States  are 
parties  are  usually  drawn  up  in  both  languages,  in  parallel 
columns.  Treaties  with  the  Ottoman  Porte  are  drawn  up  in 
Arabic  and  French.^ 

'  II  Pradier-Fodere,§§  1061-1065,  II  Dig.  Int.  Law,  §  130;  Kluber,  §§ 
1084- 1099;  Heffter,  §§  87-89;  I  200,321;  II  De  Martens,  §§  329,  330. 
Lorimer,  pp.  260-269;  Hall,  §  109;         '^  II  De  Martens,  §  179;  II  Philli- 


234 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


Form  and  Signature.  No  rigorous  form  is  necessary  to  be 
followed  in  the  preparation  of  these  instruments  so  long  as 
the  conditions  of  the  agreement  are  clearly  expressed,  and  as- 
sented to,  by  the  signatory  parties.  Those  entered  into  by 
Christian  states  begin  with  a  solemn  invocation  to  the  Deity, 
though  this  is  less  frequently  the  case  than  formerly,  especially 
in  treaties  of  a  commercial  character.  The  first  paragraph 
contains  the  name  and  designation  of  the  contracting  parties, 
followed  by  a  clause  stating,  in  general  terms,  the  object  of 
the  treaty  or  convention,  and  by  the  names  and  titles  of  the 
ministers  who  have  been  empowered  to  represent  the  inter- 
ested states  in  the  negotiation.  Next  follows  the  body  of 
the  treaty,  which  is  made  up  of  stipulations  mutually  agreed 
to.  It  is  divided  into  articles  and  clauses,  the  last  of  which 
fixes  the  terms  of  ratification  and  the  date  of  signature.  As 
many  copies  are  prepared  as  there  are  contracting  parties; 
and,  in  affixing  the  signatures  and  seals,  the  principle  of  the 
alternat  is  resorted  to— that  is,  the  representative  of  each  state 
signs  first  the  copy  intended  for  his  own  government.  The 
order  of  the  other  signatures  is  determined  by  lot,  or  alpha- 
betically, the  initial  letter  of  each  state  determining  the  order 
of  signature.' 

Ratification  of  Treaties.  On  account  of  the  magnitude 
and  importance  of  the  interests  involved,  treaties  acquire 
binding  force  only  when  they  have  been  ratified  by  the  sover- 
eign authority  of  the  states  which  are  parties  to  their  opera- 
tion, and  all  modern  treaties  contain  provisions  stipulating  for 
such  an  exchange  of  ratifications.  Ratification  by  one  party 
does  not  constrain  the  others  to  a  similar  course;  but  the  act 
of  ratification,  when  completed  by  all  parties,  is  retroactive  in 
its  operation,  and  gives  effect  to  the  treaty  from  the  date  of 
signature,  unless  the  contrary  is  expressly  stipulated."     There 

more,  pp.  61-63;   Heffter.  §   235;  106,    166-168;    I    De    Martens,   §§ 

I  Ortolan,  p.  loi ;  Dana's  Wheaton,  46,  47  ;  II  Ibid.  §§  331-334:  I  Hal- 

§  158;  Kluber,  §  114;  II  Dig.  Int.  leek,  p.  106;  II  Pradier-Fodere,  §§ 

Law,  §  130.  1084-1099  ;  I  Twiss,  §  251  ;    II  Dig. 

•  Bluntschli,  §§  417-424;  Vattel,  Int.  Law,  §  130;  Hall,  §  109, 

liv.  ii.  ch.  xii.  §  1 56 ;  Kluber,  §§  100-  '  Although  it  is  true,  as  a  prin- 


TREATIES   AND   CONVENTIONS  235 

has  been  considerable  discussion  as  to  whether  ratification 
could  be  withheld,  without  lack  of  good  faith,  in  treaties  con- 
taining no  such  provision.  Some  Continental  writers,  follow- 
ing the  rule  of  the  Roman  Law,  have  held  that  states  are 
bound  by  the  acts  of  their  plenipotentiaries,  when  they  have 
not  exceeded  their  full  powers  and  confidential  instructions, 
as  principals  are  bound  by  the  acts  of  their  duly  authorized 
agents.  Others  justly  make  a  distinction,  in  this  respect,  be- 
tween treaties  and  contracts.  Treaties  are  compacts  between 
sovereign  states,  involving  interests  of  the  greatest  magnitude, 
and  often  of  the  most  intricate  character,  far  transcending  in 
importance  the  agreements  of  individuals,  which,  however 
complicated,  are  relatively  simple  in  comparison.  However 
full  and  minute  the  powers  and  instructions  of  ministers  may 
be,  they  are  still  liable  to  errors  of  judgment  or  mistakes  of 
policy,  which  can  only  be  discovered  and  remedied  by  a  care- 
ful and  disinterested  examination  of  their  work,  and  a  full 
criticism  of  its  provisions  from  all  points  of  view.' 

Accession  of  Other  States.  Treaties  sometimes  contain 
provisions  for  the  accession  of  third  parties  to  their  operation. 
The  Declaration  of  Paris,  the  Treaty  of  Washington,  and  the 
Geneva  Convention  are  examples  of  this  practice.  Such  ac- 
cession is  had  by  a  formal  act  on  the  part  of  the  state  desir- 
ing participation,  by  which  it  assumes,  and  agrees  to  be  bound 
by,  the  obligations  of  the  treaty  from  the  date  set  forth  in  its 

ciple  of  international  law,  that,  as  considered  as  concluded  until  there 

respects  the  rights  of  either  gov-  is  an  exchange  of  ratifications. — 

ernment  under  it,  a  treaty  is  con-  Haver  vs.  Yaker.  9  Wallace,    32; 

sidered  as  concluded  and  binding  Vattel,  liv.  ii.  ch.  xii.  §  156;  II  Pra- 

from  the  date  of  its  signature,  and  dier-Fodere,  §§  1100-1119:    Hall,  § 

that  in  this  regard  the  exchange  of  no;  I  Halleck,  p.  229;  II  Dig.  Int. 

ratifications   has  a  retroactive   ef-  Law,  §§  131,  132. 
feet,  confirming  the  treaty  from  its         '  Bluntschli,  §  419-424;   Kliiber, 

date,  a  differen't  rule  prevails  where  §§  142,  326  ;  I  De  Martens,  §  48  ;  II 

the  treaty  operates  on   individual  Ibid.  §§    291,   333;    Lawrence,   Int. 

rights.     There,  the  principle  of  re-  Law,  §  152;  Hall,  §110;   II  Philli- 

lation  does  not  apply  to  rights  of  more,  pp.  75-77;  II  Dig-  Int.  Law, 

this  character  which  were  vested  §§  131.  131a;  HefTter,  §  87 ;    Dana's 

before  the  treaty  was  ratified,  and  Wheaton,  §§  256-262;    II  Halleck, 

in  so  far  as  it  affects  them  it  is  not  pp.  229-233. 


236      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

act  of  adhesion.  This  is  especially  the  case  in  treaties  having 
in  view  some  modification  or  amendment  of  the  rules  of  inter- 
national law.  The  provisions  of  the  Declaration  of  Paris,  in 
1856,  have  been  acceded  to  by  many  states  in  Europe  and 
America.  England  and  the  United  States,  in  the  Treaty  of 
Washington,  of  1871,  agreed  to  use  their  influence  to  induce 
other  nations  to  accept  the  principles  of  maritime  law  laid 
down  in  that  instrument.'  The  arbitration  convention  con- 
cluded by  the  International  Peace  Conference  at  the  Hague, 
in  1899,  prescribes  the  conditions  in  accordance  with  which 
non-signatory  states  may  become  parties  to  the  operation  of 
that  instrument.'' 

Termination  of  Treaties.  Treaties  cease  to  be  binding  or 
are  abrogated  : 

1.  With  the  mutual  consent  of  the  contracting  parties.  Such 
consent  would  ordinarily  be  expressed  in  a  document  of  the 
same  dignity  and  force  as  the  original  instrument  which  it  is 
proposed  to  abrogate  or  modify.^  The  treaty  of  1862  between 
Great  Britain  and  the  United  States,  in  respect  to  the  sup- 
pression of  the  African  slave-trade,  has  been  modified  by 
three  subsequent  agreements  on  the  same  subject.'' 

2.  When  continuance  is  conditioned  upon  terms  which  do 
not  exist. ^  The  right  to  navigate  a  boundary  river  which  has 
ceased  to  be  navigable,  or  to  fish  in  certain  waters  in  which 
fisheries  have  ceased  to  exist  are  examples  of  this  case. 

3.  Where  either  party  refuses  to  perform  a  mutual  stipula- 
tion." This  will  be  the  case  if  but  a  single  article  has  been 
violated,  for  the  agreement  was  to  observe  the  treaty  in  its  en- 
tirety. In  this  event  the  other  party  is  released  from  his  obli- 
gations, and  the  instrument  becomes  void  ;   or  he  may  insist 

•  Kliiber,  §  161  ;  Heffter,  §  88 ;  II  ii.    ch.    xiii.   §    205;    BluntschH.  § 

Pradier-Fodere,  §§  1131,  1145-1150.  452;  Kliiber,  §  164;  Heffter,  §§  98, 

^  For  text  of  this  Convention  see  99;  Pradier-Fodere,  §  12 10. 

Appendix  E.  *  Whart.  Comm.  Am.  Law,  §  161 ; 

^  Treaties  and  Conventions  of  the  Heffter,  §  98  ;  Bluntschli,  §  456. 

United   States  1776-188/,  pp.  461,  MVhart.  Comm.  Am.  Law,  §  161 ; 

472,474.  Bluntschli,   §   455;  Kliiber,  §  165; 

♦Wharton's    Commentaries    on  Vattel,   book    ii.    ch.  xiii.    §    202; 

American  Law,  §  i6i  ;  Vattel,  book  Heffter,  §  98. 


TREATIES   AND   CONVENTIONS  237 

upon  a  compliance  with  the  stipulations  of  the  treaty,  and 
may  demand  indemnities  for  any  injury  that  has  resulted  from 
such  failure,  on  the  part  of  the  defaulting  state,  to  observe  its 
agreement.  As  treaties  convert  imperfect  \\\X.o  perfect  obliga- 
tions, the  injured  party  may  resort  to  force  to  obtain  redress 
for  the  injury  which  he  has  sustained.' 

4.  Where  all  the  material  stipulations  have  been  per- 
formed.^ 

5.  Where  a  party,  having  the  option  to  do  so,  elects  to  with- 
draw.^ The  form  and  period  of  notice  in  such  cases  is  usually 
made  the  subject  of  a  clause  or  stipulation  in  the  original  treaty. 

6.  Where  performance  becomes  physically  or  morally  im- 
possible." A  state,  for  example,  enters  into  treaties  of  alli- 
ance with  several  powers,  all  engage  in  war  at  the  same  time; 
can  it  in  such  case  comply  with  its  stipulations?  (a)  if  they 
engage  in  war  with  a  foreign  state  ;  (b)  if  they  engage  in  war 
with  each  other?  Three  states  enter  into  a  triple  alliance; 
war  breaks  out  between  two  of  them  ;  can  the  third  state 
make  good  the  terms  of  the  alliance  with  both  ?  ^ 

7.  When  a  state   of   things,  which  was  the   basis    of   the 

'  "As  the  engagements  of  a  treaty  Heffter,   §  98  ;   I  Lorimer,  p.  264; 

impose  on  the  one  hand  a  perfect  Dana's    Wheaton,  §  275  ;     Hall,  § 

obligation,   they   produce   on   the  116. 

other  a  perfect  right.  The  breach  '  All  contracts  between  great 
of  a  treaty  is,  therefore,  a  violation  states  cease  to  be  unconditionally 
of  the  perfect  right  of  the  party  binding  as  soon  as  they  are  tested 
with  whom  we  have  contracted;  by  the  "struggle  for  existence." 
and  this  is  an  act  of  injustice  No  great  nation  will  ever  be  in- 
against  him." — Vattel,liv.  ii.  chap,  duced  to  sacrifice  its  existence  on 
xii.  §  164;  II  De  Martens,  §  265;  the  altar  of  fidelity  to  contract 
I  Halleck,  pp.  440-442;  III  Philli-  when  it  is  compelled  to  choose  be- 
more,  §  35.  tween  the  two.     The  maxim  "  ul- 

^  Whart.  Comm.  Am.  Law,  §  161  ;  tra  posse  nemo   obligatur  "  holds 

Bluntschli,  §  450;    Kliiber,  §  165;  good  in  spite  of  all  treaty  formulas 

Vattel,  book  ii.ch.  xiii.  §  198  ;  Heff-  whatsoever,    nor    can    any    treaty 

ter,  §  99;  I  Halleck,  p.  242;  Hall,  §  guarantee  the  degree  of  zeal  and 

116.  the  amount  of  force  that  will  be 

^  Whart.  Comm.  Am.  Law,  §  161 ;  devoted  to  the  discharge  of  obliga- 

Bluntschli,  §  454;    Kliiber,  §   164;  tions  when  the  private  interest  of 

Heffter,  §  99;   I   Halleck,  pp.  242,  those  who  lie  under  them  no  longer 

243;  II  Dig.  Int.  Law,  §  137a.  reinforces  the  text  and  its  earliest 

''  Whart.  Comm.  Am.  Law,  §  161  ;  interpretation. — II  Bismarck's  Au- 

Bluntschli,  §  459;  Kliiber,  §    164;  tobiography,  pp.  273,  274. 


238  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

treaty,  and  one  of  its  tacit  conditions  no  longer  exists.  A 
particular  treaty  is  entered  into  by  two  states  having  in  mind 
the  continued  existence  of  a  particular  form  of  government, 
the  continuance  of  friendly  relations;  the  existence,  or  ab- 
sence of  emigration,  or  the  like.  In  this  case  as  a  particular 
state  of  affairs  has  changed  or  ceased  to  exist,  the  obligatory 
character  of  the  instrument  undergoes  a  corresponding  change. 
The  same  case  arises  when  one  of  the  contracting  parties 
ceases  to  exist  as  an  independent  state,  or  where  the  internal 
constitution  of  either  state  is  so  changed  as  to  render  the 
treaty  inapplicable  under  circumstances  different  from  those 
in  view  of  which  it  was  concluded.' 

When  the  absorption  of  one  state  in  the  corporate  existence 
of  another  results  from  treaty  stipulations,  the  obligations  of 
the  state  which  ceases  to  exist  are,  as  a  rule,  provided  for  in 
the  treaty  of  cession ;  and  pass,  with  its  territories,  to  the 
state  which  has  acquired  them.  When  territory  is  lost  as  a 
result  of  conquest,  the  rule  as  to  the  passing  of  obligations  is 
not  uniform ;  in  some  instances  debts  have  been  assumed  by 
the  conqueror;  in  others,  however,  they  have  been  repudiated  ; 
the  amount  of  the  debt  being  regarded  as  in  the  nature  of  an 
indirect  contribution,  levied  by  the  conqueror  upon  the  van- 
quished belligerent  party.* 

1  Whart.  Comm.  Am.  Law,  §  161;  from  any  cause  whatever,  it  loses 

Bluntschli,  §   456  ;  Kliiber,  §  165,  its  national  quality,   or  that  of  a 

note;  Wheaton,  part  iii.  ch.  ii.  §  10;  political  and  independent  society. 

Heffter,  §  98.     The  treaty  between  Thus  when  a  state  is  destroyed  and 

the  United  States  and  Algiers,  for  the  people  are  dispersed,  or  when 

example,    was    abrogated    by    the  they  are  subdued  by  a  conqueror. 

French   conquest  of  that  state  in  all  their  alliances  and  treaties  fall 

1831;    those   with    Hanover   were  to  the  ground  with  the  public  power 

similarly  terminated  by  the  absorp-  that  contracted  them." — Vattel,  liv. 

tion  of  Hanover  in  the  kingdom  of  ii.  chap.  xiii.  §§  203,  204.     The  rule 

Prussia  in  1866.— H  Dig.  Int.  Law,  respecting  the  passing  of   obliga- 

§  137a.  tions,  where  territory  is  lost  by  con- 

^  "  In  the  same  manner  as  a  per-  quest,  in  the  extreme  form  in  which 
sonal  treaty  expires  at  the  death  of  it  is  stated  by  Vattel  (liv.  ii.  chap, 
the  king  who  has  contracted  it,  a  xiii.  §  203),  may,  perhaps,  be  accept- 
real  treaty  is  dissolved  if  one  of  the  ed  as  the  rule  of  international  law 
nations  is  destroyed— that  is  to  say,  applicable  to  the  case,  subject,  how- 
not  only  if  the  men  who  compose  ever,  to  the  qualification  above  stat- 
it  happen  all  to  perish,  but  also  if,  ed,  that  the  failure  of  a  conqueror 


TREATIES  AND  CONVENTIONS  239 

8.  Where  the  stipulations  of  the  treaty  limit  the  period  of 
its  operation  to  a  definite  period  of  time,  or  to  a  fixed  date. 
In  this  case,  however,  the  agreement  is  said  to  be  renewed  if 
the  parties  avail  themselves  of  its  provisions  subsequent  to  the 
date  fixed  for  its  expiration,  such  action  constituting  a  tacit 
renewal  of  the  treaty.'  The  treaties  of  1785  and  1789  between 
the  United  States  and  Prussia  ;  that  of  1816  with  Sweden;  and 
that  of  1824  with  Colombia  were  terminated,  in  each  case,  at 
the  expiration  of  a  period  of  limitation  prescribed  in  the 
treaty  at  the  time  of  its  negotiation. 

Effect  of  War  on  Treaties.  Treaties  are  suspended,  and 
by  some  authorities  are  cancelled,  by  the  occurrence  of  war 
between  the  contracting  parties.  They  remain  suspended 
during  the  period  of  the  war,  from  the  outbreak  of  hostilities 
until  the  negotiation  of  a  treaty  of  peace.''  The  least  effect 
of  war  is  to  interrupt  peaceful  relations;  it  therefore  suspends 
the  operations  of  all  treaties  not  permanent  in  character,  or 
which  do  not  contemplate  a  state  of  war.  The  belligerent 
states  resume  friendly  relations  by  the  execution  of  a  treaty 
of  peace,  and  that  treaty  should  determine  to  what  extent 
treaty  relations  between  them  shall  be  resumed. 

The  following  treaties,  however,  are  not  suspended  by  the 
outbreak  of  war  between  the  contracting  parties  :' 

to  recognize  and  assume,  or  other-  Hall,§  125;  I  Tvviss, §252;  Woolsey, 

wise  provide  for,  the  obligations  of  §  160;  II  Pradier- Fodere,  §  121 5; 

the    conquered    state,   is,   in    sub-  Dana's  Wheaton,  §  275,  note,  p.  143. 

stance,  the  levy  of  a  contribution,  The  termination  of  a  treaty  by  war 

or  indemnity,  to  the  extent  of  the  does  not  divest  rights  of  property 

obligation  repudiated;  their  omis-  already  vested  under  it.     Treaties 

sion  from  the  treaty  constituting  a  stipulating    for    a    permanent    ar- 

tacit  or  indirect  imposition  of  the  rangement  of  territorial  and  other 

contribution  in  question.  national  rightsare  at  most  suspend- 

'  Bluntschli,  §451  ;  Kluber,  §  164;  ed  during  war  and  revive  at  peace, 

Vattel,  liv.  ii.  ch.  xiii.  §§  198,  200;  I  unless  they  are  waived  by  the  par- 

Halleck,  p.  243;  II  Pradier-Fodere,  ties,  or  new  and  repugnant  stipula- 

§  1213J;  II  Dig.  Int.  Law,  §  137a;  tions  are  made.  —  Society,  etc.  vs. 

Hall,  §  116 ;  Pomeroy,§  289.  New    Haven,     8     Wheaton,    464; 

'  Bas  vs.  Tingey,   4   Dallas,    37;  Dana's  Wheaton,  §  275,  note  143. 

Sutton  vs.  Sutton,  i  R.  &  M.  663  ;  I  M  Halleck,  p.  242  ;  Dana's  Whea- 

Halleck,  p.   242;    Riquelme,    Der.  ton,  §  275,  note  143  ;  Heflfter,  §  141 ; 

Pub.   Int.   liv.   i.  tit.  i.  chap.  xv. ;  Lawrence,  Int.  Law,  i66. 


240     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

(i.)  Treaties  of  a  permanent  character,  executed  with  full 
knowledge  that  war  may  occur,  but  given  a  permanent  charac- 
ter by  special  stipulation. 

(2.)  Treaties  entered  into  with  a  view  of  modifying  or 
amending  the  rules  of  international  law.  Of  this  the  Dec- 
laration of  Paris,  modifying  the  rules  of  maritime  war,  and 
the  rules  of  war  on  land  adopted  by  the  peace  conference  at 
the  Hague  in  1899  are  examples. 

(3.)  Treaties  which  contemplate  the  occurrence  of  war,  and 
which  come  into  effect  only  at  the  outbreak  of  hostilities. 
Such  are  treaties  of  alliance,  or  subsidy,  or  treaties  regulat- 
ing the  operations  of  war,  or  defining  contraband  of  war  or 
guaranteeing  the  neutrality  of  a  place,  as  a  state,  a  city,  or 
a  ship-canal. 

Classification  of  Treaties.  Treaties  are  susceptible  of 
classification,  according  to  their  subject-matter,  into : 

{a.)  Treaties,  properly  so-called. 

{b.)  Cartels. 

{c)  Capitulations. 

{d.)  Suspensions  of  arms,  or  truces. 

Those  of  the  first  class,  or  treaties  proper,  are  again  sub- 
divided into : 

{a.)  Transitory  Agreements  or  Conventions.  These  are  trea- 
ties the  immediate  execution  of  which  is  essential,  and  which 
are  complete  when  the  stipulated  act  has  been  performed  ;  their 
effects  only  are  permanent.  Such  are  boundary  conventions, 
treaties  of  cession,  etc.,  corresponding  to  executed  contracts 
at  common  law. 

{b^  Permanent  Treaties.  These  have  continuing  effect,  and 
regulate  the  future  relations  and  actions  of  the  contracting 
parties.  Treaties  of  friendship  and  commerce,  of  neutrality, 
extradition,  and  naturalization,  and  postal  and  customs  con- 
ventions are  examples  of  this  class.  These  treaties  may  be  of 
perpetual  or  limited  duration.  They  may  go  into  effect  at  a 
fixed  date  in  the  future,  and  may  expire  at  a  certain  date,  at 
the  expiration  of  a  certain  period,  or  may  be  terminated  at 
the  will  of  either  party,  upon  due  notification.     Their  exist- 


TREATIES  AND   CONVENTIONS  24I 

ence  may  be  terminated  by  war,  or  they  may  come  into  effect 
only  during  hostilities  between  the  interested  parties. 

Cartels  are  agreements  entered  into  in  time  of  war,  for  the 
exchange  of  prisoners.  They  are  made  by  the  commanders- 
in-chief  of  the  belligerent  forces,  with  the  express  or  presumed 
consent  of  their  governments.  They  may  be  transitory  in 
character,  or  for  the  period  of  the  war.'  In  some  European 
states  this  term  is  applied  to  an  agreement  entered  into  in 
time  of  peace  for  the  extradition  of  deserters  from  the  mili- 
tary service. 

Capitulations  are  agreements  entered  into,  in  time  of  war, 
by  the  commanders  of  hostile  fleets  or  armies,  for  the  sur- 
render of  a  fortified  place  or  fleet,  or  of  a  defeated  army.  The 
proposition  may  originate  with  the  commander  of  the  place, 
fleet,  or  army,  or  may  be  in  the  nature  of  a  demand  made 
upon  him  by  the  opposite,  or  successful,  party.  Upon  either 
of  these,  as  a  basis,  the  capitulation  is  drawn  up,  the  terms 
being  modified,  and  the  conditions  of  surrender  determined, 
by  the  relative  strength  and  resources  of  the  belligerent  par- 
ties. Every  general  commanding  a  besieged  place  or  separate 
army  is  presumed  to  have  authority  to  enter  into  arrange- 
ments of  this  kind,  though  his  power  may  be  restricted  in 
some  way  by  the  sovereign  authority  of  his  own  state.  In 
such  an  event  his  action  would  be  subject  to  the  approval 
of  his  government,  and  he  should  notify  his  opponent  that 
such  is  the  case.^  Cartels  and  capitulations  are  drawn  up  in 
the  same  form  as  treaties.  The  latter  are  signed  first  by  the 
successful  party.^ 

Objects  of  Treaties.  The  purpose  or  object  of  a  treaty  is, 
in  most  cases,  sufficiently  determined  by  its  title.  There  are 
some,  however,  which  require  additional  explanation. 

Treaties  of  Alliance.     These  are  agreements   undertaken 


1  II    Halleck,  p.  354;    III   Philli-  '  For  a  discussion  of  the  duty  of 

more,  §  112.  the   commanding   officer  of   a  be- 

^Vattel,  liv.  iii.  chap.  xvi.  §§  261-  sieged  place  in  the  matter  of  sur- 

263;  II  Halleck,  p.  348;  III  Philli-  render,  see  the  chapter  relating  to 

more,  §  123.  the  operations  of  war. 


242  THE  ELEMENTS  OF  INTERNATIONAL   LAW 

by  two  or  more  states  with  a  view  to  secure  concerted  ac- 
tion for  a  certain  purpose.  They  may  be  either  temporary  or 
permanent  in  character,  and  are  entered  into  by  states  which 
are  menaced  by  a  common  danger,  or  whose  mutual  interests 
are  threatened.  Alliances  are  created  by  treaty  stipulations,  and, 
however  slight  the  concert  of  action  may  be,  the  resulting  com- 
bination possesses  some  of  the  essential  features  of  a  league  or 
confederation  ;  the  terms  of  the  treaty  of  alliance  determining 
the  conditions  of  the  union.  Alliances  may  be  equal  or  un- 
equal, offensive  or  defensive,  or  both.  Allied  states  may 
guarantee  the  continuance  of  a  certain  state  of  affairs  in  a 
third  state,  or  in  one  of  the  states  of  the  alliance.  They  are 
defensive  when  their  object  is  to  secure  a  common  interest 
against  aggression.  Such  alliances  are  conservative  in  char- 
acter, and,  by  aggregating  the  influence  and  resources  of  a 
number,  aim  to  secure  respect  for  the  sovereign  rights  of 
each  of  the  component  states.  Offensive  alliances  are  formed 
for  the  purpose  of  attacking  a  state,  or  league  of  states,  either 
directly,  or  upon  the  occurrence  of  certain  conditions.  From 
their  nature  they  are  a  constant  menace  to  the  peace  of  na- 
tions. The  leagues  organized  to  resist  the  schemes  of  Louis 
XIV.  and  Napoleon,  though  offensive  in  form,  were  really  de- 
fensive in  character,  and  tended  to  preserve  the  principle  of 
balance  of  power.  If  alliances  of  this  class  be  excepted,  it 
will  be  found  that  the  offensive  combinations  of  which  his- 
tory has  preserved  the  records,  whatever  may  have  been  the 
real  or  assumed  necessity  of  their  organization,  and  however 
wisely  they  may  have  been  administered,  have  rarely  secured 
the  prevalence  of  justice,  or  contributed  to  the  advancement 
of  any  righteous  cause. 

Equal  Alliances  stipulate  for  the  same  or  similar  contribu- 
tions of  force  or  resources,  or  for  a  proportionate  contribution 
based  upon  the  resources  of  each  ally.  Unequal  Alliances  are 
those  in  which  the  contributions  stipulated  for  are  unequal  in 
character  or  amount,  or  in  which  the  allied  powers  enjoy  dif- 
ferent degrees  of  consideration  or  influence.  Each  party  to  a 
treaty  of  alliance  is  the  sole  judge  as  to  when  the  case  con- 


TREATIES  AND   CONVENTIONS  243 

templated  by  the  treaty  exists,  or  in  which  the  action  or  inter- 
vention of  an  ally  is  required.' 

Treaties  of  Guarantee.  These  compacts  are  accessory  in 
character,  and  are  entered  into  for  the  purpose  of  securing  the 
observance  of  a  treaty  already  existing,  or  the  permanence  of 
an  existing  state  of  affairs.  If  the  guarantee  covers  the  viola- 
tion of  any  and  every  right,  the  treaty  of  guarantee  creates  an 
alliance.  The  term  guarantee,  in  its  most  general  sense,  in- 
cludes all  treaties  the  purpose  of  which  is  to  secure  the  observ- 
ance and  execution  of  other  treaties,  or  the  maintenance  of 
certain  existing  conditions  for  a  limited  or  unlimited  period 
of  time.  The  conditions  of  the  guarantee  are  stated,  in  detail, 
in  the  body  of  the  treaty.  The  guarantor  state  decides  when 
the  case  exists  which  was  contemplated  in  its  guarantee,  and 
is  required  to  fulfil  the  conditions  stated  in  the  guarantee, 
and  no  more.  Any  change  in  the  guaranteed  treaty,  without 
the  consent  of  the  guarantor,  annuls  the  obligation.  If  the 
duty  or  aid  stipulated  is  inadequate  to  the  end  proposed  in 
the  guarantee  no  additional  duty  or  aid  can  be  required.'' 

The  following  conditions  have  been  made  the  subject  of 
guarantee : 

(«.)  The  political  existence  of  a  state,  its  sovereignty,  or 
independence,  or  its  existence  within  certain  territorial  limits.' 

{b.)  The  permanent  neutrality  of  a  state/  or  its  neutrality 
under  certain  conditions.'  Similarly  a  portion  or  fragment  of 
a  state  may  be  neutralized  with  a  view  to  secure  the  uninter- 
rupted use  of  a  work  of  public  improvement  as  in  the  case  of 
the  Suez  Canal  and  the  proposed  interoceanic  canals  in  Nica- 
ragua and  on  the  Isthmus  of  Panama. 

'  I   Halleck,  p.   236;  Vattel,  liv.  in  1832.     The  Treaty  of  Paris,  of 

ii.   ch.    xii.  §§    174-182;    Heflter,  1856,  contained  a  somewhat  simi- 

§  92-  lar  provision  of  respecting  the  Ot- 

*  II  Phillimore,  pp.  80-88  ;  Vat-  toman  empire, 

tel,   liv.  ii.  ch.  xvi.   §§  235-261 ;   I  *  The  case  of  Switzerland  is  an 

Halleck,  p.  235.  example  of  this. 

^  The  sovereignty  and   indepen-  *  The  perpetual  neutralization  of 

dence  of  Greece  was  guaranteed  by  Belgium    was   guaranteed    by    the 

France,  Great  Britain,  and  Russia,  great  powers  in  the  treaty  of  April 

in  a  treaty  negotiated  at  London,  19,  1839. 


244  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

(c.)  The  free  navigation  of  certain  rivers,'  and  the  perma- 
nent neutrality  of  works  of  improvement  upon  them. 

(d.)  The  neutrality  of  ship-canals  and  other  artificial  means 
of  communication  between  bodies  of  water  of  which  the  navi- 
gation is  free  to  ships  of  all  nations. 

(e.)  The  payment  of  loans."  In  this  case  the  guaranteeing 
powers  usually  become  guarantors,  and  are  obliged  to  make 
good  any  default  of  their  principals  in  their  stipulated  pay- 
ments of  principal  or  interest. 

Reciprocity  Treaties.  These  are  compacts  containing  stip- 
ulations requiring  the  mutual  or  reciprocal  observance  of  cer- 
tain duties  or  obligations.  Most  treaties,  to  a  certain  extent, 
involve  reciprocal  action,  or  the  recognition  of  mutual  rights 
and  duties.  It  is  only  when  a  treaty  involves  a  considerable 
number  of  such  obligations  that  it  receives  this  name.  Extra- 
dition and  naturahzation  treaties  are  reciprocal,  but  only  on 
the  subject  from  which  each  is  named.  Most  reciprocity  trea- 
ties, properly  so  called,  are  of  a  commercial  character,  and 
stipulate  for  specially  favorable  terms  of  commercial  inter- 
course, for  consular  privileges,  for  the  admission  of  certain 
products  of  each  state  into  the  ports  of  the  other  at  special 
rates  of  duty,  or  without  the  payment  of  duty.'  They  are 
usually  entered  into  for  a  limited  period  of  time,  at  the  end  of 
which  they  expire,  or,  at  the  will  of  the  interested  states,  are 
revised  and  extended  for  a  further  period.  The  component 
states  of  a  union  or  confederacy  are  frequently  obliged,  by  the 
constitution  or  treaty  of  union,  to  grant  many  reciprocal  priv- 

'  Kliiber,  §  1 57.  the  subjects  covered  by  the  "  most 
^  In  the  Treaty  of  London,  in  favored  nation  clause "  relate  to 
1832,  France,  Great  Britain,  and  gratuitous  privileges  merely,  and 
Russia  guaranteed  a  loan  of  Otho,  do  not  apply  to  reciprocity  treaties 
the  Bavarian  prince  who  had  been  which  contain  stipulations  which, 
created  by  them  King  of  Greece.  as  they  are  based  upon  considera- 
^Treatiescontainingwhatisknown  tion,  partake  of  the  nature  of  con- 
as  "the  most  favored  nation  clause"  tract  obligations.  A  contrary  view, 
are  not  generally  regarded  as  oper-  however,  has  been  asserted  by  Great 
ating  to  entitle  states  whose  trea-  Britain.— II  Dig.  Int.  Law,  §  134; 
ties  contain  them  to  special  privi-  I  Ibid.  §  68;  U.  S.  For.  Rel.  1896, 
leges  stipulated  for  in  reciprocity  p.  429. 
treaties.     This  for  the  reason  that 


TREATIES   AND   CONVENTIONS  245 

ileges  to  each  other.  This  was  the  case  in  the  Zollveiein,  and 
is  so  in  the  existing  German  Confederation.  According  to 
the  Constitution  of  the  United  States,  the  states  of  the  Fed- 
eral Union  are  obhged  to  extradite  criminals  on  the  demand 
of  other  states,  to  accord  the  privileges  of  citizenship  to  citi- 
zens of  other  states,  and  to  give  full  faith  to  the  properly  au- 
thenticated records  and  judgments  of  courts  in  the  other 
states  of  the  Union. 

Rules  for  the  Interpretation  of  Treaties.  Treaties,  like 
laws,  are  drawn  in  general  terms,  and  in  their  preparation  the 
effort  is  made  to  frame  their  provisions  in  such  terms  as  will 
include  all  cases  that  may  fairly  arise  under  them.  This  is  a 
task  of  extreme  difificulty.  As  the  parties  to  such  agreements, 
more  frequently  than  not,  speak  different  languages,  and  rep- 
resent different,  and  sometimes  opposing,  legal  and  political 
systems,  it  is  not  at  all  remarkable  that  causes  of  difference 
should  arise  more  frequently  in  the  execution  of  treaties  than 
in  the  operation  of  municipal  laws.  The  rules  of  interpreta- 
tion in  both  cases  are  substantially  the  same  ;  the  task  of  in- 
terpretation, however,  is  vastly  more  dififiicult,  in  the  case  of 
treaties,  than  in  the  case  of  contracts  and  municipal  laws.  The 
attempt  to  frame  rules  for  this  purpose  has  been  frequently 
made  ;  not  always,  however,  with  entirely  satisfactory  results. 
The  English  rules  of  Rutherforth  are  based  upon  the  common 
law  rules  of  interpretation  as  applied  to  contracts.  Those  of 
Vattel  and  Domat  are  based  upon  the  rules  of  the  Roman  law. 
To  these  authors  the  student  is  referred  for  a  general  discus- 
sion of  the  subject.' 

The  following  rules  are  now  generally  sanctioned : 

(i.)  Interpretation    must   be   mutual.     Neither  party  to  a 

'  Grotius,  liv.  ii.  chap.  xvi.  ;  Vat-  Usual  interpretation  ;  that  which  is 

tel,  hv.  ii.  chap,  xvii.;  Rutherforth,  founded    upon    usage    and    prece- 

book  ii.  chap.  vii.  ;   I  Halleck,  pp.  dent,     (c)    Doctrinal    intcrpreta- 

244-250;    II   Phillimore,  §S  64-67.  tio7i;  that  which  is  founded  upon 

Phihimore    arranges    the    several  a  scientific  exposition  of  the  terms 

rules  of  interpretation  under  three  of  the  instrument,  and  which,  ac- 

heads  :   (a)   Atithentic    interpreta-  cording  to  many  jurists,  is  the  only 

Hon;   that  is,  the  exposition  sup-  interpretation  properly  so  called. — 

plied  by  the  lawgiver  himself,     (b)  II  Phillimore,  §  (3"]  ;  Kliiber,  §  163. 


246  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

treaty  can  apply  his  own  rule  without  impairing,  or  destroy- 
ing, the  binding  force  of  the  instrument.' 

(2.)  A  clause  of  a  treaty  can  have  but  one  true  meaning." 

(3.)  The  words  of  a  treaty  are  presumed  to  have  been  used 
in  their  usual  sense  and  acceptation  at  the  time  the  treaty  was 
made,  unless  such  interpretation  involves  an  absurdity.' 

(4.)  Terms  technical  to  an  art  are  used  in  the  sense  or  mean- 
ing applied  to  them  in  that  art;  terms  peculiar  to  the  language 
of  one  of  the  contracting  parties  are  given  the  meaning  which 
they  have  in  that  language."*  Where  a  treaty  is  executed  in 
more  than  one  language,  each  language  being  the  language  of 
a  contracting  party,  each  document  is  to  be  regarded  as  an 
original,  and  the  sense  of  the  treaty  is  to  be  drawn  from  them 
collectively.^ 

(5.)  Clauses  inserted  at  the  instance,  or  for  the  benefit,  of 
one  party,  are  strictly  construed;  that  is,  they  are  given  the 
meaning  least  favorable  to  the  party  at  whose  instance  they 
were  inserted;^  it  is  his  fault  if  he  has  not  expressed  himself 
clearly. 

(6.)  Favorable  clauses  are  to  be  interpreted  liberally.  Odious 
clauses  are  to  be  interpreted  strictly.  Favorable  clauses  are 
those  granting  privileges  to  individuals  or  states,  or  doing 
away  with,  or  modifying,  restrictions  upon  rights.  Harsh 
clauses  are  those  depriving  individuals,  or  classes  of  persons, 
of  rights  already  existing,  or  abridging  such  rights  or  privi- 
leges, or  rendering  them  ineffective.' 

(7.)  An  interpretation  which  renders  a  treaty  inoperative  is 

'  Hall,  §  III ;  Vattel,  liv.  ii.  chap.  Wildman,  pp.  177-178  ;    Woolsey, 

xvii.  §  265;  Kliiber,  §  163;  Heflfter,  §  113;  II  Dig.  Int.  Law,  §  133;  II 

§85;  Wildman,  pp.  177,  178;  Whar-  Phillimore,  §  70. 

ton,  Comm.  on  Amer.  Law,  §  157;  *  U.  S.  vs.  Arredondo,  6  Peters, 

II  Dig.  Int.  Law,  §  133.  691. 

"  Bojd's  Wheaton,    §   287a;    II  *  Vattel,  liv.  ii.  chap.  xvii.  §  264  ; 

Phillimore,   §   73;   Vattel,    liv.    ii.  Heflfter,  §  98;    Wildman,   p.   179; 

chap.  xvii.  §  283.  Woolsey,  §  113  ;  II  Dig.  Int.  Law,  § 

'  Hall,  §  1 1 1  ;  Vattel,  liv.  ii.  chap.  133  ;  II  Phillimore,  §  70. 

xvii.  §§  271-282  ;  Wildman,  p.  177  ;  '  Vattel,  liv.  ii.  chap.  xvii.  §§  300- 

Woolsey,    §    113;     II    Phillimore,  310;  Wildman,  pp.  184,  185  ;  Wool- 

§70.  sey,  §  113;  II  Dig.  Int.  Law,  §  133; 

*  Vattel,  liv.  ii.  chap.  xvii.  §  276  ;  II  Phillimore,  §  95. 


TREATIES  AND   CONVENTIONS  247 

to  be  rejected.  Treaties  are  entered  into  for  the  purpose  of 
accomplishing  an  end,  or  of  attaining  an  object.  An  interpre- 
tation, therefore,  which  renders  a  treaty  wholly  or  in  part  inop- 
erative, is  absurd.' 

(8.)  Special  clauses  are  to  be  preferred  to  general :  pro- 
hibitory clauses  to  permissive ;  and,  in  general,  that  which  is 
expressed  in  great  detail  is  to  be  preferred  to  that  which  is 
stated  in  general  terms,  or  in  less  particular  detail.  General 
clauses  are  declaratory  of  a  principle.  If  exceptions  exist, 
they  are  accurately  defined  and  stated  in  the  modifying 
clauses  which  follow  the  principal  clause.  The  broad  terms 
of  a  general  clause,  or  title,  cannot  be  appealed  to  as  author- 
ity against  the  precise  limitation  or  exemption  of  the  special 
clause.'' 

(9.)  In  the  interpretation  of  a  treaty  the  instrument  must 
be  regarded  as  an  organic  whole,  and  every  part  must  be  con- 
sidered with  reference  to  every  other  part.  Hence  earlier 
clauses  are  explained  by  later  clauses  in  the  same  treaty,  or 
by  clauses  on  the  same  subject  in  later  treaties  between  the 
same  parties.  Obscure  clauses  in  earlier  treaties  are  explained 
by  clearer  and  more  precisely  stated  clauses  in  agreements  of 
later  date.  As  regards  any  particular  subject  of  stipulation, 
the  whole  treaty  policy  of  two  states  on  that  subject  is  to  be 
considered.  Later  treaties  explain  and  modify  earlier  treaties 
on  the  same  subject.* 

Strict,  or  Restrictive  Interpretation,  consists  in  the  precise 
application  of  the  terms  of  an  instrument  to  a  particular  case 
arising  under  it.  It  involves  the  exclusion  of  all  cases  not 
covered  by  a  literal  rendering  of  its  terms." 

Liberal,  or  Extensive  Interpretation,  consists  in  an  attempt 
to  so  construe  the  provisions  of  a  treaty  as  to  include  within 
its  operations  cases  similar  in  principle  to  those  specifically 

*  Hall,  §111;  Vattel,  liv.  ii.  chap.  =  Vattel,  liv.  ii.  chap.  xvii.  §  286 ; 
xvii.  §§  282,  283,286;  Wildman,  p.  II  Ferguson,  §  133;  VVildman,  p. 
177;  Woolsey,§  113.  180;    Woolsey,    §    113;    II    Philli- 

*  Wildman,  p.  185  ;  Vattel,  liv.  ii.  more,  §  70;  II  Dig.  Int.  Law,  §  133. 
chap.  xvii.  §§  312-317;  II  Philli-  *  Vattel,  liv.  ii.  chap.  xvii.  §§  292, 
more,  §  97.  293  ;  II  Phillimore,  §§  82-87. 


248  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

provided  for.  It  is,  in  substance,  a  broad  and  comprehensive 
rendering  of  the  clauses  of  a  treaty,  regard  being  had  to  the 
spirit  rather  than  the  letter  of  the  instrument.' 

In  connection  with  the  subject  of  interpretation  the  follow- 
ing definitions  are  given  of  terms  frequently  used  in  connec- 
tion with  treaties : 

Protocol.  This  is  a  word  of  Byzantine  origin,  and  was  at 
first  applied  to  the  first,  or  outer,  sheet  of  a  roll  of  manuscript, 
upon  which  was  written  or  impressed  the  writer's  name,  the 
date  of  the  instrument,  and  the  title  of  the  minister  from  whose 
office  it  issued.  As  a  diplomatic  term  it  is  applied  to  the  rough 
draft  of  a  public  act,  or  to  the  preliminary  draft  of  an  agreement 
between  two  or  more  states,  which  is  to  constitute  the  basis 
of  negotiations  in  a  treaty  to  be  subsequently  executed  ;  the 
term  is  also  applied  to  the  formally  authenticated  minutes  of 
the  proceedings  of  a  congress  or  conference.  In  a  similar  sense 
it  is  applied  to  the  preliminary  acts  and  agreements  entered  into 
by  ambassadors  in  the  preparation  of  a  treaty. 

Recez.  This  term  is  applied  to  the  act  of  a  diet,  or  con- 
gress, in  reducing  to  writing  the  result  of  its  deliberations  upon 
a  particular  subject,  before  final  adjournment. 

Separate  Articles.  These  are  clauses  added  to  a  treaty 
after  it  has  been  formally  signed  and  ratified.  They  are  con- 
tained in  a  separate  instrument,  and  are  duly  authenticated, 
but  are  construed  in  connection  with  the  treaty  to  which  they 
refer,  and  of  which  they  form  a  part. 

The  Most  Favored  Nation  Clause.  The  use  of  this  clause 
is  becoming  constantly  more  frequent  in  treaties,  especially  in 
those  of  a  commercial  character.  It  commends  itself  by  its 
convenience.  Its  effect  is  to  extend  the  scope  and  operation 
of  a  treaty  to  cover  any  concessions  of  privileges,  of  a  similar 
character  to  those  stipulated  for,  which  may  be  granted  in  the 
future,  by  either  party,  to  other  states,  or  to  their  citizens  or 
subjects.  The  clauses  of  later  treaties  granting  such  conces- 
sions in  this  way  become  an  integral  part  of  the  early  treaty. 

'Vattel,  liv.  ii.  chap.  xvii.  §  290;  man,  p.  184;  II  Twiss,  §  230;  I 
II  Phillimore,  pp.  82-87;  I  Wild-     Halleck,  pp.  244,  245. 


TREATIES  AND   CONVENTIONS  249 

The  following  clause,  extracted  from  a  recent  treaty  of  the 
United  States,  illustrates  the  principle  involved  :  "  Every  right, 
privilege,  or  immunity  that  the  Egyptian  Government  now 
grants,  or  may  grant  in  future,  to  the  subjects  or  citizens,  ves- 
sels, commerce,  and  navigation  of  whatsoever  other  foreign 
power,  shall  be  granted  to  citizens  of  the  United  States,  ves- 
sels, commerce,  and  navigation,  who  shall  have  the  right  to 
enjoy  the  same."  ' 

References.  The  most  valuable  collection  of  treaties  in  the  English 
language  is  that  of  Hertslet,  vols,  i.-iv.  This  work  should  be  used  in 
connection  with  "  The  Map  of  Europe  by  Treaty,"  by  the  same  author. 
For  the  treaties  of  the  United  States,  see  "  Treaties  and  Conventions  of 
the  United  States,"  etc.,  1776-1889,  and  "  The  United  States  Statutes  at 
Large"  (annual  vols.),  1889-1899.  The  Spanish  work  of  Calvo,  in  six 
volumes,  contains  all  treaties  nesjotiated  by  the  Latin  states  of  America 
prior  to  1862.  There  are  many  valuable  collections  of  treaties  to  which 
the  Continental  states  of  Europe  have  been  parties.  None  of  them 
are  complete,  however.  Jenkinson's  collection  contains  most  English 
treaties  between  1648  and  1785.  See  also  G.  F.  De  Martens,  "  Esquisse 
d'une  Histoire  Diplomatique  des  Traites,"  etc. ;  "  Recueil  des  Principaux 
Traites,"  etc.,  1761-1818,  by  G.  F.  De  Martens,  with  Murrhard's  contin- 
uation, bringing  the  work  to  i860;  and  the  "Corps  Universal  Diploma- 
tique" of  J.  Dumont,  which,  with  its  additions,  etc.,  covers,  with  more 
or  less  fulness  the  period  between  315  and  1738  a.d.  Rymer's  "  Foe- 
dera,"  etc.,  contains  a  collection  of  treaties,  between  England  and  other 
powers,  between  the  years  iioi  and  1654.  A  supplement  to  this  work, 
in  fifty-seven  volumes,  is  preserved  in  the  British  Museum.  For  a  full 
bibliography  of  this  subject,  see  Kliiber,  pp.  424-437-  I"  connection 
with  the  general  subject  of  treaties  see  also  Vattel,  liv.  ii.  chapters  xii.- 
xvii. ;  Holtzendorff,  §§  26-28;  Heffter,  §§  81-89;  Kliiber,  §§  141-165 ; 
Bluntschli,  §§  402-461  ;  II  Phillimore,  §§  44-99;  Lawrence,  Int.  Law.  §§ 
152-154;  Hall,  §§  107-117;  I  Halleck,  chap.  viii. ;  Woolsey,  §§  101-113; 
Dana's  Wheaton,  §§  252-289;  I  Twiss,  §§  224-264;  I  Lorimer,  pp.  260- 
269;  I  Wildman,  chap.  iv. ;  II  Pradier-Fodere,  §§886-1224;  II  Dig.  Int. 
Law,  §§  130-166. 

'  Treaties  and  Conventions  of  the  Conventions  of  the  United  States 

United   States,  1776-1887,   p.  272.  1776-1887,   p.   264.     See  also  the 

For  a  clause  placing  an  interpreta-  article  by  M.  Ernest  Lehr,  on  the 

tion  upon  a  favored  nation  clause,  most  favored  nation  clause,  in  vol. 

see  the  Treaty  between  the  United  xxv.  Revue  de  Droit  Int.  pp.  313- 

States  and  Ecuador,  Treaties  and  323. 


CHAPTER  IX 

THE  CONFLICT  OF  INTERNATIONAL  RIGHTS:  THE  ADJUST- 
MENT OF  DISPUTES,  MEDIATION,  ARBITRATION,  RE- 
TORSION,  REPRISALS,  PACIFIC    BLOCKADE 

Procedure  in  Cases  of  Conflict.  When  a  conflict  of  in- 
ternational rights  arises,  as  is  the  case  whenever  one  state  has 
a  cause  of  difference  with  another,  it  is  customary  for  the 
state  whose  rights  have  been  denied,  or  trespassed  upon,  to 
make  known  its  cause  of  complaint  to  the  offending  state,  and 
to  demand  that  justice  be  done  for  the  wrong  that  has  been 
committed.  The  urgency  of  this  demand  is  always  propor- 
tional to  the  gravity  and  importance  of  the  injury  sustained. 
The  motive  of  some  violations  of  perfect  or  sovereign  rights 
may  be  so  obvious  and  unmistakable  that  no  explanations  are 
asked  for  by  the  offended  state,  and  resort  is  at  once  had  to 
forcible  measures  of  redress.  On  the  other  hand,  the  offence 
may  consist  in  the  violation  of  some  minor  rule  of  comity  of 
so  little  importance  that  a  mere  exchange  of  diplomatic  notes 
is  deemed  a  sufficient  remedy.  Between  these  two  extremes 
lie  the  various  methods  of  settling  international  disputes.* 

Methods  of  Adjustment.  Those  most  frequently  resorted 
to  are : 

(a.)  An  amicable  adjustment  of  the  difference  by  the  inter- 
ested states. 

(b.)  Mediation. 

(c.)  Arbitration. 

The  Amicable  Adjustment  of  Disputes.  A  cause  of  dif- 
ference between  two  sovereign  states  may  arise,  (a)  as  a  con- 
sequence of  friction  in  the  relations  of  the  states  themselves 

'  III  Phillimore,  pp.  1,2;  II  Ferguson,  p.  220;  Walker,  Manual,  p.  93. 


THE   CONFLICT  OF   INTERNATIONAL   RIGHTS 


2;i 


as  bodies  corporate,  or  (b)  as  a  consequence  of  injuries  al- 
leged to  have  been  sustained  by  a  citizen  of  the  one  from 
the  government  of  the  other.  In  the  latter  case  it  is  a  rule 
observed  by  all  states  that  the  citizen  or  subject  who  prefers 
the  complaint  will  be  required  to  show,  to  the  satisfaction  of 
the  Foreign  Ofifice  of  the  state  to  which  such  complaint  is  pre- 
sented, that  he  has  resorted  to,  and  exhausted,  all  local  means 
of  redress  provided  by  the  state  by  whom  the  injury  is  alleged 
to  have  been  inflicted,  before  bringing  the  matter  to  the  at- 
tention of  his  own  government.' 


'  A  citizen  of  one  nation,  wronged 
by  the  conduct  of  another  nation, 
must  seek  redress  through  his  own 
government.  His  sovereign  must 
assume  the  responsibility  of  pre- 
senting his  claim,  or  it  need  not  be 
considered. — United  States 7^.y.  Die- 
kelman,  92  U.  S.  520  [524].  The 
usage  of  sovereigns  is  not  to  inter- 
fere in  the  administration  of  justice 
until  the  foreign  subject  who  com- 
plains has  gone  with  his  case  to  the 
court  of  dernier  resort.  —  Pagan's 
Case,  I  Opin.  Att.-Gen.  p.  25,  Ran- 
dolph (1792).  A  nation  ought  not 
to  interfere  in  the  causes  of  its  citi- 
zens brought  before  foreign  tribu- 
nals, except  in  a  case  of  refusal  of 
justice  or  of  palpable  injustice. — 
Green's  case,  I  Ibid.  p.  53,  Bradford 
(1794).  The  rule  that  before  a  citi- 
zen of  a  country  is  entitled  to  the 
aid  of  his  government  in  obtaining 
redress  for  wrongs  done  him  by  an- 
other government,  he  must  have 
sought  redress  in  vain  through  the 
judicial  tribunal  of  that  other  gov- 
ernment, is  inapplicable  where  the 
oflfending  government,  by  the  acts 
of  its  proper  organ,  relieves  the  in- 
jured party  from  the  obligation  of 
pursuing  such  a  course.  —  Pana- 
ma Transit  Tax,  XIII  Ibid. p.  547, 
Akerman  (1871).  Where  an  officer 
with  a  party  of  armed  men,  acting 
under  an  order  of  a  judicial  officer 
of  the  port  of  Granada,  seized  an 


American  vessel  at  that  port,  kept 
possession  of  it  a  few  hours,  and 
then  withdrew  pursuant  to  an  order 
of  the  same  judge,  the  seizure  hav- 
ing been  made  for  the  purpose  of 
enforcing  a  supposed  legal  right: 
Held,  that  this  government  ought 
not  to  make  reclamation  in  behalf 
of  the  owner,  as  it  is  presumable 
that  if  the  proceedings  were  illegal 
the  judicial  tribunals  of  Nicaragua 
will  afford  redress.  —  Case  of  the 
Tipitapa,  XIII  Ibid.  p.  554,  Aker- 
man (1872).  A  Spanish-owned  ves- 
sel on  her  way  from  New  York  to 
Havana,  being  in  distress,  put,  by 
leave  of  the  admiral  commanding 
the  squadron,  into  Port  Royal, 
S.  C,  then  in  rebellion  and  block- 
aded by  a  government  fleet,  and 
was  seized  as  prize  of  war  and 
used  by  the  government.  She 
was  afterwards  condemned  as  prize, 
but  ordered  to  be  restored.  She 
never  was  restored ;  damages  for 
her  seizure,  detention,  and  val- 
ue being  awarded  :  Held,  that 
clearly  she  was  not  prize  of  war 
or  subject  to  capture,  and  that 
her  owners  were  entitled  to  fair 
indemnity,  although  it  might  well 
be  doubted  whether  the  case  was 
not  more  properly  a  subject  for 
diplomatic  adjustment  than  for  de- 
termination by  the  courts.  —  The 
Nuesira  Sehora  de  Regla,  17  Wal- 
lace, 30. 


252  THE    ELEMENTS    OF   INTERNATIONAL   LAW 

Procedure.  Whenever  a  state  has  occasion  to  complain  of 
the  action  of  another  towards  itself  or  towards  one  of  its  sub- 
jects, a  statement  of  the  particular  act  complained  of  is  pre- 
pared in  the  Foreign  Office  of  the  offended  state.  This  state- 
ment is  based  upon  all  the  ascertainable  facts  of  the  case, 
which  should  be  so  carefully  sifted  and  verified,  by  those 
charged  with  their  investigation,  as  to  make  it  impossible  to 
question  their  substantial  accuracy.  This  is  necessary  because 
it  is  impossible,  in  international  affairs,  to  produce  evidence 
in  the  ordinary  legal  acceptation  of  the  term.  The  facts  thus 
ascertained  and  verified  are  next  examined  with  a  view  to  as- 
certaining whether  they  do,  or  do  not,  constitute  a  violation  of 
international  law.  If  they  do  a  statement  of  the  case  is  pre- 
pared and  a  formal  demand  for  redress  is  submitted,  through 
the  proper  diplomatic  channels,  to  the  government  by  whom 
the  injury  was  committed.  In  support  of  this  case  reference 
is  made  to  the  works  of  standard  text-writers,  to  the  provisions 
of  treaties,  if  the  case  be  covered  by  them,  and  to  precedents 
in  international  intercourse,  especially  to  those  established  by 
the  offending  state  in  its  international  relations.  In  conclu- 
sion, such  explanation,  disavowal,  or  reparation  is  demanded 
as  is  warranted  by  the  circumstances  of  the  case.' 

If  that  government  be  clearly  in  the  wTong  it  acknowledges 
its  error,  or  disavows  the  act  of  its  subordinate  officials;  and 
offers  reparation,  accompanied  by  such  explanation  and  apol- 
ogy as  the  occasion  seems  to  demand.  In  cases  where  such  a 
remedy  is  suitable,  money  indemnities  are  agreed  upon  and 
paid  to  injured  parties.^  It  rarely  happens,  however,  that 
either  state,  in  a  particular  controversy,  is  either  entirely 
right,  or  entirely  wrong ;  and  the  same  facts  are,  in  general, 
differently  regarded  by  each  of  two  interested  states.  This 
leads  to  controversial  discussion,  each  state  advancing  argu- 
ments and  citing  authorities  in  support  of  that  view  of  the 

'  II  De  Martens,  §  251  ;    Creasy,  ^  See,  in  this  connection,  the  dis- 

First  Platform,  §§322-372;  III  Phi!-  cussion  of  the  right  of  a  state  to 

Hmore,  pp.  1-17;  Vattel,  liv.  ii.  ch.  protect  its  citizens  abroad,  pp.  95- 

xviii.  §§  323-326;    II    Ferguson,  §  98. 
158;  II  Dig.  Int.  Law,  §§  213-222. 


THE   CONFLICT   OF   INTERNATIONAL    RIGHTS 


253 


case  which  it  believes  to  be  most  nearly  in  accordance  with 
justice.  A  correspondence  of  this  kind  may  continue  through 
a  period  of  years,  and  rarely  leads  to  results  of  direct  or  im- 
mediate importance.  It  is  resorted  to  when  two  states  cherish 
different  views  as  to  the  justice  of  a  practice  maintained  or  ad- 
vocated by  one  and  denied  by  the  other.  Such  was  the  long 
controversy  between  England  and  the  United  States  upon  the 
right  of  search,  which  extended  over  a  period  of  more  than 
fifty  years.  When  a  nation  complains  of  a  clear  and  decided 
violation  of  international  law,  however,  and  no  dispute  exists 
as  to  the  facts  in  the  case,  reparation  on  the  part  of  the  of- 
fending state  is  usually  made  with  the  greatest  promptness.' 

Duty  of  Moderation.  In  this  method  of  adjustment,  much 
depends  upon  the  tact  and  moderation  shown  by  the  diplo- 
matic representatives  of  the  interested  states  in  dealing  with 
the  question  of  difference.     "  It  not  infrequently  happens  that 


'  The  following  cases  are  cited  in 
illustration  of  this  principle  : 

Case  of  the  Laconia.  In  Decem- 
ber, 1878,  the  American  whaling- 
ship  Laconia,  while  in  the  port  of 
Zanzibar,  Africa,  was  boarded  by 
an  officer  of  the  British  ship-of-war 
Leader,  Captain  Earl.  The  board- 
ing party  took  from  the  Laconia 
three  Africans,  claiming  that  they 
were  slaves,  Captain  Earl  justifying 
his  act  under  the  treaty  of  1862, 
between  England  and  the  United 
States,  for  the  suppression  of  the 
slave-trade.  The  matter  was  rep- 
resented to  the  British  Govern- 
ment, by  whom  the  action  of  Cap- 
tain Earl  was  promptlydisapproved, 
and  the  regrets  of  Her  Majesty's 
Government  at  the  occurrence  were 
conveyed,  through  the  British  min- 
ister, to  the  government  at  Wash- 
ington. —  Foreign  Relations  of 
the    United    States,  1879,  pp.  41 5- 

432- 

Case  of  the  James  Bliss.  In  1872 
the  American  schooner  yrt;w^.y  Bliss 
was   seized,   in    British   territorial 


waters,  by  the  Canadian  police  cut- 
ter Stella  Maris,  for  an  alleged  vio- 
lation of  the  fishery  laws.  Soon 
after  her  arrival  in  the  port  of  Gaspe 
Basin  the  commanding  officer  of 
the  police  cutter  caused  the  Do- 
minion flag  to  be  hoisted  above  the 
American,  at  the  mast-head.  The 
act  was  repeated  on  the  following 
day,  in  both  instances  against  the 
protest  of  the  American  consul. 
The  facts  were  then  reported  to 
the  Department  of  State  in  Wash- 
ington, by  whom  they  were  brought 
to  the  attention  of  the  Governor- 
General  of  Canada  in  the  diplo- 
matic way.  Action  was  at  once 
taken  in  the  matter.  Lord  Duffer- 
in,  the  Governor-General,  disavow- 
ing, in  the  amplest  manner,  any  in- 
tention of  showing  disrespect  to  the 
American  flag.  He  also  announced 
that  he  had  given  most  particular 
instructions  directing  the  discon- 
tinuance of  the  practice. — Foreign 
Relationsof  the  United  States,  1872, 
pp.  200-208.  See  also  the  case  of 
the  Baltimore,  p.  80. 


254  THE   ELEMENTS   OF   INTERNATIONAL    LAW 

what  is  at  first  looked  upon  as  an  injury  or  an  insult  is  found, 
upon  a  more  deliberate  examination,  to  be  a  mistake  rather 
than  an  act  of  malice,  or  one  designed  to  give  offence.  More- 
over, the  injury  may  result  from  the  acts  of  inferior  persons, 
which  may  not  receive  the  approbation  of  their  own  govern- 
ments. A  little  moderation  and  delay,  in  such  cases,  may 
bring  to  the  offended  party  a  just  satisfaction,  whereas  rash 
and  precipitate  measures  may  often  lead  to  the  shedding  of 
much  innocent  blood.  The  moderation  of  the  Government  of 
the  United  States  in  the  case  of  the  burning  of  the  American 
steamboat  Caroline,  in  1837,  by  a  British  of^cer,  led  to  an  ami- 
cable adjustment  of  the  difficulties  arising  from  a  violation  of 
neutral  territory,  and  saved  both  countries  from  the  disasters 
of  a  bloody  war.'"  The  cases  of  the  Creole"^  and  of  what  is 
known  as  the  Tahiti  affair  are  illustrations  of  the  same  prin- 
ciple. In  the  former  case  "the  feeling  in  the  southern  states 
of  the  Union  was  strong  in  favor  of  war,  and  in  all  human 
probability  would  have  caused  it,  had  it  not  been  for  the 
friendly  and  courteous  spirit  in  which  the  American  and  British 
governments  carried  on  their  communications  on  the  subject 
with  each  other."  In  the  latter  case,  "  the  menacing  effects 
of  popular  indignation  at  a  supposed  gross  national  insult 
were  averted  by  the  fairness  and  temperance  with  which  one 
government  made  its  claim  for  redress,  and  by  the  readiness 
on  the  other  side  to  enter  into  a  calm  investigation  of  all  the 
circumstances  of  the  case,  and  to  listen  to  reason  and  justice 
rather  than  to  give  way  to  national  vanity.  Here  we  have 
three  occasions  in  which,  by  the  self-action  of  the  parties  con- 
cerned, by  a  cool  and  candid  examination  of  the  subject  in 
dispute,  and  by  a  gentle  method  of  terminating  differences, 
three  of  the  greatest  countries  in  the  world  set  examples  of 
forbearance  that  deserve  to  be  recorded  as  precedents  worthy 
of  imitation.'" 

'  I  Halleck,  pp.  413,  414.  form  of  International  Law,  pp.  391, 

'  Page  120.  392;  Abdy's  Kent,  p.  72  ;  I  Halleck, 

'  Sir  Edward  Creasy,  First  Plat-     pp.  413.  4^4;  H  Twiss,  §  9. 


the  conflict  of  international  rights       255 

Amicable  Measures  of  Redress 

Mediation.  Of  all  the  methods  hitherto  proposed  for  pre- 
venting international  strife  this  has  been  by  far  the  most  ef- 
fective and  successful  in  its  practical  working.  It  consists,  in 
substance,  of  a  reference  of  the  cause  of  difference  to  a  disin- 
terested power,  who  suggests  a  remedy,  or,  more  frequently, 
proposes  an  adjustment  based  upon  such  mutual  concessions 
as  will  remove  the  cause  of  difference  or  irritation.  Mediation 
may  be  asked  by  the  interested  states,  or  a  third  power  may 
tender  its  good  offices,  with  a  view  to  the  maintenance  of 
peace.  In  the  latter  case  the  friendly  powers  tender  their 
good  offices,  which  may  be  accepted,  or  not,  by  the  interested 
states.  This  method  of  adjusting  international  differences 
was  frequently  resorted  to  during  the  Middle  Ages,  especially 
by  the  Pope,  and  there  are  numerous  instances  of  his  success- 
ful mediatory  interference  to  be  found  in  the  history  of  Europe 
during  that  period.  In  modern  times  the  tendency  to  media- 
tion has  greatly  increased  in  force,  and  but  few  cases  of  con- 
flict of  international  right  have  arisen,  in  recent  times,  in  which 
the  good  offices  of  friendly  powers  have  not  been  tendered  to 
the  litigant  states.  Although  these  offers  have  not  always,  or 
even  usually,  been  accepted,  their  effect  has  been  beneficial, 
inasmuch  as  they  have  furnished  new  grounds,  or  reasons, 
for  the  settlement  of  existing  difficulties,  and  have  suggested 
methods  of  adjustment  which  had  not  occurred  to  the  inter- 
ested parties.' 

Arbitration.  Private  arbitration  consists  in  the  reference 
of  an  international  difference  or  dispute  to  a  tribunal  com- 
posed of  one  or  several  persons.  To  this  tribunal  the  ques- 
tion of  difference  is  submitted,  and  its  decision,  when  ren- 
dered, is  binding  upon  the  interested  parties.  This  method 
of  adjustment  does  not  afford  so  prompt  a  remedy  as  can  be 
obtained  through  mediation,  and  is  applicable  to  a  somewhat 

'  I  Halleck,  p.  415;  Levi,  pp.  266,  99,  345  ;  Vattel,  liv.  ii.  chap,  xviii.  § 
267;  Creasy,  pp.  392-394;  Wool-  328;  II  Fersfuson,  §  157,  p.  205; 
sey,  §234;  Boyd's  Wheaton,  pp.  95-     Snow,  §  34;  1 1  Tvviss,  §  7. 


2^6  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

different  class  of  cases.  It  possesses  an  advantage  over  that 
form  of  adjustment,  however,  in  that  its  decisions  have  great- 
er binding  force,  since,  if  rendered  in  good  faith,  they  cannot 
be  rejected  by  Htigant  parties  as  can  offers  of  mediation.' 

The  composition  of  the  tribunal,  the  method  of  selecting  its 
members,  the  time  and  place  of  meeting,  its  rules  of  procedure, 
and  the  precise  question  to  be  referred  to  it  for  decision,  are 
always  made  the  subject  of  a  preliminary  treaty.  This  instru- 
ment also  contains  a  solemn  agreement,  on  the  part  of  the  in- 
terested states,  to  abide  by  the  decision  of  the  board  of  arbi- 
tration. If  a  person  of  sovereign  rank  is  selected  to  act  as  an 
arbitrator,  the  case  on  each  side  is  submitted  to  him,  through 
his  minister  of  foreign  affairs,  and  his  decision  is  rendered 
through  the  same  channel.  If  the  tribunal  is  composed  of 
several  members,  the  cases  are  submitted  by  counsel,  whose 
arguments  are  heard.  The  provisions  of  the  Roman  law  on 
the  subject  of  arbitration  may,  with  the  consent  of  the  inter- 
ested parties,  be  made  obligatory  upon  the  tribunal.  A  more 
liberal  code  of  procedure  is  frequently  provided,  or  the  rules 
of  the  Roman  law  are  somewhat  modified  in  their  application 
to  a  particular  case.^ 

In  reaching  a  decision  the  majority  rule  prevails,  unless  other- 
wise precisely  stipulated  in  the  preliminary  treaty,  and  the  deci- 
sion of  the  tribunal  binds  the  litigant  states,  unless  its  validity 
can  be  contested  upon  any  one  of  the  following  grounds: 


'  For  cases  in  which  the  United  Creasy,  pp.  394-399;   Snow,   §  34; 

States  has  been  interested  in  par-  Heflfter,  §  109;  III  F.  De  Martens, 

ticular  cases  of  arbitration,  see  the  §§  139-154;  III  Dig.  Int.  Law,§  316; 

Foreign   Relations  of   the  United  Vattel,  Hv.  ii.  chap,  xviii.  §  329;  Ho- 

States,  1874,  pp.  195-197;  1875,  part  sack,  pp.  12,  53,  238,  239;  I  Wildman, 

i.  pp.  185-200,  197-199;   1878,  pp.  pp.186,  187;  VVoolsey,  pp.  400, 40J  ; 

16-18,709-711;  1882,  pp.  42,  326-  III  Calvo,  §§  1706-1806;  VI  Ibid.  §§ 

332,398-441;  1 886,.  p.  776;  188S,  pp.  352-39.    The  law  faculty  of  the  Uni- 

79,   134,  455,  456,  468,   1345;    1892,  versity  of   Bologna  was  frequently 

pp.  1-3,  17-19.    See  also  "  List  and  called  upon  to  adjust  disputes  aris- 

Digest  of  the  Arbitrations  to  which  ing  among  the  early  Italian  repub- 

the  United  States  has  been  a  Party,"  lies.     The  senate  of  the  free  city  of 

by  Professor  John  J.  Bassett  Moore.  Hamburg  performed  a  similar  office 

'M   Halleck,  pp.  416-418;   Hall,  in  the  north  of  Europe. — JI  Twiss, 

p.  361;  III  Phillimore,   pp.  2-14;  §5. 


THE  CONFLICT   OF   INTERNATIONAL   RIGHTS  257 

(i.)  If  one  of  the  members  of  the  tribunal  has  not  acted  in 
good  faith ;  or  if  its  decision  be  tainted  with  fraud. 

(2.)  If  any  of  the  conditions  of  the  preliminary  treaty,  as  to 
method  of  procedure,  time,  and  place  of  meeting,  have  not 
been  complied  with ;  or  if  the  decision  has  not  been  rendered 
within  the  time  therein  stated.' 

(3.)  If  the  tribunal  has  exceeded  its  jurisdiction  ;  or  if  its 
decision  goes  outside  the  case  submitted  to  it  for  adjudication.' 

Mediation  and  Arbitration  Compared.  If  the  cases  be 
compared  in  which  these  methods  of  adjusting  international 
disputes  have  been  successfully  applied,  it  will  be  seen  that 
mediation  has  been  found  riiost  useful  when  it  has  been  re- 
sorted to  to  prevent  threatened  hostilities,  especially  in  cases 
involving  national  reputation,  or  when  considerable  national 
feeling  has  been  aroused.  It  has  also  been  found  a  success- 
ful method  of  terminating  an  existing  war,  especially  when 
a  disinterested  state  has  chosen  a  fitting  opportunity,  during 
an  interval  of  hostile  operations,  to  tender  its  good  offices 
to  the  belligerent  powers.  Arbitration,  on  the  contrary,  "im- 
plies a  beHef  on  the  part  of  both  that  either  a  legal  or  quasi- 
legal  question  is  involved,  and  that  each  is,  in  his  own  opin- 
ion, right ;  or,  in  other  words,  that,  when  the  state  of  facts  is 
carefully  examined,  and  the  law  or  equitable  principle  accu- 
rately expounded,  each  hopes  and  thinks  the  result  will  be 
in  his  own  favor.  A  bona  fide  belief  in  the  justice  of  one's 
own  cause  is  an  essential  element  in  a  successful  arbitration. 
If  such  a  belief  is  absent,  there  can  be  no  readiness  to  obey 
the  award,  and  the  same  causes  of  acrimony  exist  after  the 
award  as  before  it."^  "Arbitration  is  an  expedient  of  the 
highest  value  for  terminating  international  controversies;  but 
it  is  not  applicable  to  all  cases  or  under  all  circumstances, 
and  the  cases  and  circumstances  to  which  it  is  not  applica- 
ble do  not  admit  of  precise  definition.  Arbitration,  therefore, 
must   of  necessity   be  voluntary ;  and   though  it   may  some- 

'  Heffter,  §  109;  II  Twiss,  §  5;  VI  ^  Amos,  Science  of  Law,  p.  348: 
Pradier-p-odere,  §  2628;  III  Philli-  VI  Pradier- Fodere,  §§  2610-2613,- 
more,  §  3;  Hall,  §  119.  II  Twiss,  §  7. 

17 


258  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

times  be  a  moral  duty  to  resort  to  it,  cannot  be  commanded, 
in  any  form,  by  what  is  called  the  positive  law  of  nations."' 


Arbitration  Convention  of  The  International  Peace 
Conference  at  The  Hague. 

Purpose  of  the  Conference.  With  a  view  to  secure  con- 
certed action  in  respect  to  certain  questions  of  serious  inter- 
national concern,  having  to  do  with  the  maintenance  of  the 
general  peace  and  the  amelioration  of  the  hardships  of  war 
on  land  and  sea ;  and  with  the  view  of  securing,  if  possible, 
an  agreement  looking  to  a  gradual,  but  sensible,  reduction  in 
the  burdens  of  military  and  naval  armaments,  a  conference 
of  delegates  met  at  The  Hague  on  May  18,  1899,  in  response 
to  an  invitation  addressed  by  the  Emperor  of  Russia  to  the 
principal  states  of  the  civilized  world.  In  pursuance  of  the 
invitation  thus  issued,  one  hundred  and  one  delegates,  repre- 
senting twenty-six  states,  appeared  and  exchanged  their  cre- 
dentials at  The  Hague  on  the  day  appointed  for  the  meet- 
ing of  the  conference.  The  conference  completed  its  labors 
at  a  final  session  held  on  July  29,  1899.  Apart  from  its 
deliberations  in  respect  to  the  subject  of  international  arbitra- 
tion, other  questions  were  discussed,  and  important  conclu- 
sions were  reached  which  will  be  discussed  elsewhere.  The 
most  important  results  of  its  labors,  however,  are  to  be  found 
in  the  convention  for  the  adjustment  of  international  disputes, 
to  which  sixteen  important  states  of  the  world  were  signatory 
parties.^     The  following  are  its  more  important  provisions: 

'  Sir  Montague  Bernard,  Letter  means  the  first  project  for  the  gen- 

to  Z<?;/('/6';/  7>;;/if^,  October  18,  1873.  eral    adiustment    of    international 

An  arbitration  treaty  between  Eng-  disputes  by  a  resort  to  arbitration, 

land  and  the  United  States,  nego-  The  Institutde  Droit  International 

tiated  in  1896,  failed  to  receive  the  at   its  session  of  1875  prepared  a 

approval  of  the  United  States  Sen-  scheme  for  the   adjustment  of  in- 

ate.  —  Foreign    Relations    of    the  ternational  disputes  by  arbitration, 

United  States,  1896,  p.  238.  which  was  published,  with  a  view 

^  Although  the  most  important,  to  its  general  adoption,  in  the  An- 

the  scheme  proposed  by  the  Inter-  wz^a/r^of  the  Institute  for  that  year, 

national  Peace  Conference  is  by  no  For  the  text  of  this  project,  see  the 


THE   CONFLICT   OF    INTERNATIONAL    RIGHTS  -59 

Good  Offices  and  Mediation.  The  convention  contains 
an  undertaking,  on  the  part  of  the  signatory  powers,  to  re- 
sort to  good  offices,  or  mediation,  in  cases  of  serious  differ- 
ences, or  disputes,  arising  between  two  or  more  of  the  states 
which  are  parties  to  its  operation.  It  creates  a  right  of  in- 
itiative in  this  regard,  in  behalf  of  disinterested  states,  by  con- 
ferring upon  them  the  duty  of  tendering  their  good  offices  to 
the  contending  parties  at  any  time,  either  before  or  after  the 
outbreak  of  hostilities.  It  also  provides,  in  express  terms,  that 
such  mediatory  endeavors  shall  never  be  considered,  by  the 
litigant  powers,  as  an  unfriendly  act.  A  method  of  procedure 
is  embodied  in  the  convention  by  which,  in  the  event  of  a 
dispute,  seriously  compromising  international  peace,  the  duty 
of  mediation  is  intrusted  to  powers  chosen  by  the  parties 
in  litigation,  who  are  required,  pending  such  mediatory  en- 
deavors, to  refrain  from  all  direct  communication  with  each 
other  in  respect  to  the  subject  of  the  controversy,  leaving  the 
matter  of  amicable  adjustment  to  the  exclusive  jurisdiction  of 
the  powers  who  have  been  invited  to  use  their  good  offices  in 
reaching  a  basis  of  settlement  which  shall  be  satisfactory  to 
the  litigant  states.  With  a  view  to  secure  prompt  adjustment 
of  the  difference,  the  time  consumed  by  the  mediating  powers 
is  not  to  exceed  thirty  days  under  any  single  delegation  of 
mediatory  authority.  In  the  event  of  a  complete  rupture  of 
friendly  relations,  the  mediatory  states  continue  to  be  charged 
with  the  duty  of  tendering  their  good  offices  whenever  the 
opportunity  for  such  action  presents  itself,  under  circum- 
stances leading  to  the  belief  that  the  mediatory  interposition 
of  a  disinterested  power  will  prove  acceptable  to  the  bellig- 
erent states. 

The  International  Commission  of  Inquiry.  With  a  view 
to  facilitate  the  adjustment  of  international  differences,  "  af- 


Annuaire    de    I'lnstitut    de    Droit  Droit  International,  pp.  161-206; 

International  for  1875,  p.  126;  Ibid.  Professor  Sheldon  Amos,  Political 

1878,  p.  160;  see  also,  in  this  con-  and  Legal  Remedies  for  War,  vol. 

nection,  the  article   by   Professor  iii.;  Calvo,  §  1803;  and  vol.  ii.  Fer- 

Lorimer  in  vol.  ix.  of  the  Revue  de  guson,  §  160. 


26o  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

fecting  neither  the  honor  nor  essential  interests"  of  the  states 
concerned,  by  clearing  up  such  controverted  questions  of  fact 
as  are  susceptible  of  judicial  ascertainment  or  verification,  the 
convention  provides  for  the  creation  of  an  International  Com- 
mission of  Inquiry.  The  commission  is  called  into  being  by 
a  preliminary  agreement  between  the  parties,  which  provides 
for  the  constitution,  composition,  and  procedure  of  the  tribu- 
nal, states  the  question  of  fact  the  investigation  of  which  is 
desired,  and  prescribes  the  form  in  which  evidence  is  to  be 
presented  in  behalf  of  both  parties  to  the  controversy.  At 
the  conclusion  of  the  investigation  a  report  containing  the  con- 
clusions of  fact  reached  by  the  tribunal,  as  a  result  of  its  inquiry, 
is  submitted  to  the  states  concerned.  This  report  is  rendered, 
however,  subject  to  the  qualification  that  the  conclusions  of 
fact  which  it  contains  are  not  to  have  the  character  or  force  of 
an  arbitral  judgment,  the  effect  which  is  to  be  given  to  them 
being  left  to  the  discretion  of  the  parties  to  the  investigation. 

Permanent  Court  of  Arbitration.  With  a  view  to  secure 
a  resort  to  international  arbitration  for  the  settlement  of  dis- 
putes between  states  "  by  judges  of  their  own  choice  and  upon 
a  basis  of  respect  for  law,"  the  convention  provides  for  the 
creation  of  a  Permanent  Court  of  Arbitration.  The  court  is 
to  be  composed  of  persons  chosen  by  the  litigant  parties  from 
a  permanent  list  of  arbitrators,  nominated  by  the  signatory 
powers,  from  among  their  respective  citizens  or  subjects  who 
are  fitted  by  character,  capacity,  and  training  for  the  perform- 
ance of  the  duties  which  may  be  assigned  them  in  connection 
with  the  arbitration  of  international  disputes.  The  persons 
so  named  hold  ofifice  for  the  term  of  six  years,  and  their  ap- 
pointments may  be  renewed  for  successive  terms. 

How  Constituted.  In  the  event  of  a  cause  of  difference  aris- 
ing among  two  or  more  states  which  are  parties  to  the  con- 
vention (the  attempt  to  constitute  a  tribunal  by  agreement 
between  the  contending  parties  having  failed),  a  court  of  arbi- 
tration is  constituted  in  the  following  manner:  Each  party  to 
the  controversy  names  two  arbitrators  who  are,  or  may  be,  se- 
lected from  the  permanent  list,  the  preparation  of  which  has 


THE   CONFLICT   OF    INTERNATIONAL   RIGHTS  261 

just  been  described,  and  which  is  preserved  for  that  purpose 
in  the  central  bureau  at  The  Hague.  The  persons  thus  select- 
ed by  the  contending  parties  choose  an  umpire.  In  the  event 
of  a  failure  to  make  selection,  due  to  an  equality  of  votes,  the 
choice  of  an  umpire  is  referred  to  two  disinterested  powers  se- 
lected for  that  purpose  by  the  parties  to  the  proposed  arbi- 
tration. 

The  preliminary  agreement  sets  forth  the  precise  question 
which  is  to  be  referred  to  the  tribunal  for  determination,  and 
defines  the  character  and  extent  of  the  powers  conferred  upon 
the  arbitral  tribunal ;  the  execution  of  this  agreement  implies 
an  undertaking  on  the  part  of  the  signatory  powers  to  be 
bound  by  the  judgment  of  the  court  thus  constituted. 

Procedure.  If  the  subject  of  procedure  is  not  regulated  in 
the  preliminary  agreement,  the  convention  itself  prescribes 
suitable  rules  of  procedure,  including  the  form  in  which  the 
cases  of  the  parties  to  the  controversy  are  to  be  presented,  the 
order  and  method  of  their  presentation,  and  the  rules  govern- 
ing the  introduction  of  evidence.  These  rules  are  calculated 
to  secure  a  complete  and  orderly  presentation  of  the  cases  of 
the  interested  parties,  a  fair  trial  of  the  issue  involved,  and  a 
final  decision  on  the  strict  merits  of  the  case,  as  determined 
by  the  evidence  submitted  in  support  of  the  claims  of  the  par- 
ties at  issue.  The  court  is  authorized  to  decide  questions 
arising,  from  time  to  time,  during  the  progress  of  the  trial,  and 
is  expressly  authorized,  by  the  terms  of  the  convention,  to 
interpret  the  arbitral  agreement  and,  similarly,  to  place  an  au- 
thoritative interpretation  upon  clauses  of  treaties  which  are 
cited  or  appealed  to  by  counsel,  and  to  apply  the  rules  of  in- 
ternational law.  The  decisions  of  the  tribunal  on  such  points 
are  final  and  cannot  be  made  the  subject  of  subsequent  dis- 
cussion. 

Decision.  When  the  case  on  both  sides  has  been  fully 
presented,  and  the  court  has  obtained  from  the  parties  such 
information  germane  to  the  inquiry,  as  it  may  deem  necessary 
to  a  full  understanding  of  the  controversy,  the  president  de- 
clares the  case  closed,  and  the  court,  in  closed  session,  delib- 


262  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

eiates  upon  its  findings  of  fact,  reaches  a  decision  upon  the 
merits  of  the  case,  and  prepares  its  judgment.  The  arbi- 
tral judgment,  which  is  reached  by  a  majority  of  votes,  and  is 
signed  by  all  the  members  of  the  tribunal,  fully  sets  forth  the 
reasons  actuating  the  decision  ;  but  members  of  the  minority 
may  assign  the  reasons  for  their  dissent  in  attaching  their  sig- 
natures to  the  arbitral  decision. 

Reviezv  of  the  Jndg)nent.  A  review  of  the  judgment  may 
be  provided  for  in  the  preliminary  agreement,  and,  if  thus  pro- 
vided for,  may  be  demanded  by  either  party,  within  certain 
fixed  limits  of  time  after  the  decision  of  the  tribunal  shall  have 
been  rendered.  Such  review  can  be  had,  however,  only  where 
new  facts  have  been  brought  to  light  after  the  case  before  the 
tribunal  has  been  formally  closed  ;  and  the  original  judgment 
may  be  revised  only  in  consequence  of  the  presentation  of 
such  new  matter  of  fact,  at  the  rehearing  granted  by  the 
tribunal  for  that  express  purpose.  With  a  view  to  confer  obliga- 
tory force  upon  the  judgments  of  arbitral  tribunals,  the  con- 
vention contains  the  stipulation  that  the  decision  of  the  per- 
manent court  shall  be  accepted  by  the  litigant  parties  as  a  final 
determination  of  the  cause  of  difference  referred  by  them  to 
the  arbitral  tribunal  for  decision.' 

Reservation  of  the  United  States.  The  Arbitral  Convention 
was  signed  by  the  delegates  representing  the  United  States 
with  the  following  reservation  :  "  The  delegation  of  the  United 
States  of  America,  in  signing  the  convention  regulating  the 


'  Of  the  twenty-six  states  repre-  tria-Hungary,  Italy,  Turkey,  Servia, 
sented  at  the  International  Peace  Switzerland,  Luxembourg,  China, 
Conference,  sixteen  participated  in  and  Japan.  The  signature  of  the 
the  Arbitral  Convention:  France,  United  States  was  accompanied  by 
Spain,  Portugal,  Russia,  Belgium,  a  reservation  which  is  fully  set  forth 
Holland,  Denmark,  Sweden  and  in  the  text;  but  there  is  no  state- 
Norway,  Greece,  Bulgaria,  Rou-  ment,  or  declaration,  from  any  of 
mania,  Montenegro,  Persia,  Siam,  the  non  -  signatory  powers  above 
the  United  States,  and  Mexico,  mentioned  showing  why  the  terms 
Ten  of  the  powers  represented  at  of  the  agreement  were  not  accepted, 
the  conference  did  not  become  or  acceded  to,  by  them.  For  the 
signatory  parties  to  the  conven-  text  of  the  Convention,  see  Appen- 
tion  :  Great  Britain,  Germany,  Aus-  dix  E. 


THE  CONFLICT   OF   INTERNATIONAL   RIGHTS  26^ 

peaceable  settlement  of  international  conflicts,  as  proposed  by 
the  International  Peace  Conference,  make  the  following  decla- 
rations:  Nothing  contained  in  this  convention  shall  be  so  con- 
strued as  to  require  the  United  States  of  Anrierica  to  depart 
from  its  traditional  policy  of  not  intruding  upon,  interfering 
with,  or  entangling  itself  in  the  political  questions  or  internal 
administration  of  any  foreign  state;  nor  shall  anything  con- 
tained in  the  said  convention  be  construed  to  imply  a  relin- 
quishment, by  the  United  States  of  America,  of  its  traditional 
attitude  towards  purely  American  questions." 

Measures  of  Redress,  Involving  the  Use  of  Force, 
BUT  Falling  Short  of  War 

When  Resorted  to.  Between  the  peaceable  methods  of 
adjusting  international  disputes,  which  have  already  been  de- 
scribed, and  an  actual  resort  to  force,  lie  certain  measures  of 
redress  of  a  more  serious  character.  These  methods  presume 
the  existence  of  a  cause  of  difference  between  two  states,  jus- 
tifying a  departure  from  the  normal  relations  existing  between 
the  nations  in  time  of  peace,  and  the  measures  adopted  at 
times  involve  the  use  of  violence  or  force ;  but,  even  when 
exercised  to  an  extreme  degree,  they  fall  far  short  of  open  or 
public  war.  They  are  resorted  to  only  when  redress  has  been 
asked  for  and  denied,  and  are  justifiable  only  when  the  offend- 
ing nation  acts  with  full  knowledge,  and  persists  in  doing 
injustice  even  after  its  attention  has  been  repeatedly  drawn 
to  its  wrongful  acts.' 

The  measures  of  redress  involving  the  use  of  forcible  or  hos- 
tile methods  are  susceptible  of  classification  under  one  of  two 
heads — retorsion  and  reprisals. 

Retorsion  consists  of  an  application  of  the  same  rule  of  con- 
duct in  our  relatione  with  another  state  as  is  applied,  by  that 
state,  in  its  relations  with  us.  It  is  an  application  of  the  law 
of  retaliation  in  international  affairs.     If  a  state  imposes  un- 

'  Lawrence,  Int.  Law,  §  156;  Wool-  78;  II  Twiss,  §  10;  Heffter,  §110; 
sey,  §118:  III  Phillimore,  §§  7-12;  III  F.  De  Martens,  §  105  ;  III  Calvo, 
Dana's  Wheaton,  §  290;  Snow,  p.      §  1807;  IV  Ibid.  §§  2041,  2042. 


264  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

just  restrictions  upon  aliens  residing  within  its  territories,  the 
state  whose  subjects  they  are  is  justified  in  imposing  the  same, 
or  equivalent,  restrictions  upon  the  subjects  of  the  offending 
state  who  are  resident  within  its  borders.  If  it  refuse  privi- 
leges usually  granted  by  states  to  ambassadors  and  consuls, 
the  offended  states  are  justified  in  a  similar  refusal  of  privi- 
leges to  its  consuls  and  diplomatic  representatives. 

The  field  within  which  the  principle  of  retorsion  may  be 
applied,  already  very  extensive,  is  constantly  increasing.  This 
state  of  affairs  is  due  to  the  fact  that  the  commercial  relations 
of  states  are  increasing  in  intricacy  in  direct  proportion  as  they 
increase  in  extent  and  amount,  giving  rise  to  frequent  conflicts 
between  the  commercial,  or  internal,  policy  of  particular  states, 
and  their  external,  or  international,  policy.  Illustrations  of 
this  tendency  are  to  be  found  in  the  experience  of  states  which 
derive  a  large  portion  of  their  revenue  from  customs  duties. 
If  some  article  of  native  production  falls  in  price  on  account 
of  foreign  competition,  an  attempt  is  made  to  remedy  the  dif- 
ficulty by  increasing  the  duty  upon  the  corresponding  foreign 
article.  This  is  felt  at  once  in  the  state  in  which  the  particu- 
lar article  is  produced,  or  manufactured,  and  retaliatory  meas- 
ures are  resorted  to  with  a  view  of  compelling  the  removal  of 
the  trade  restriction. 

Acts  of  retorsion  must  be  confined  to  the  class  of  imperfect 
rights,  except  Avhen  resorted  to  by  way  of  retaliation  for  simi- 
lar or  identical  acts  on  the  part  of  a  foreign  state.  The  denial 
of  ^L  perfect  right  amounts  to  a  just  cause  for  war,' 

Reprisals.  Reprisals  consist  in  the  forcible  seizure  or  de- 
tention of  property  belonging  to  an  offending  state,  or  to  its 
citizens,  which  may  be  found  within  the  territory  of  the  offend- 
ed state,  or  on  the  high  seas.  The  things  seized  are  held  sub- 
ject to  the  termination  of  the  controversy.     If  it  be  settled 


'  I  Halleck,  pp.  422,  423;  Hall,  §  Woolsey,  p.  188;  Boyd's  Wheaton, 

120;  II  De  Martens,  Precis, chap.  ii.  §  290;   Lawrence,  Int.  Law,  §  157; 

§254;  Bluntschli,  §  505;  III  Philli-  III  Calvo,  §  1807  ;  III  F,  De  Martens, 

more,  §7;  Manning,  p,  142  ;  Creasy,  §105;  Vattel,  liv,  ii.  §  341, 
p.  400;  II  Ferguson,  pp.  223,  224; 


THE    CONFLICT   OF   INTERNATIONAL   RIGHTS  265 

amicably,  the  property  is  restored,  and  reparation  is  some- 
times made  for  the  delay  and  damage  that  has  resulted  from 
the  seizure.  If  the  dispute  results  in  war,  the  property  seized 
is  condemned  as  prize. 

Reprisals  differ  from  retorsion  not  only  in  kind  but  in  de- 
gree. Retorsion  is  resorted  to  when  imperfect  rights  have 
been  trespassed  upon,  or  when  there  has  been  a  failure  to  ob- 
serve the  rules  of  comity.  Reprisals  are  resorted  to  \\\\tn per- 
fect rights  have  been  drawn  in  question,  or  denied,  or  when 
there  has  been  an  absolute  refusal  of  justice.  They  are  acts 
of  violence,  and  may  be  regarded  by  the  state  towards  which 
they  are  directed  as  amounting  to  a  declaration  of  war.  They 
are  justifiable  only  when  there  has  been  an  absolute  denial  of 
justice,  so  deliberate  and  intentional  on  the  part  of  the  offend- 
ing state  as  to  constitute  a  suf^cient  cause  for  war.  If  war 
does  not  result,  it  is  because  the  offended  state,  appreciating 
the  hardship  and  suffering  that  are  involved  in  a  resort  to  act- 
ual hostilities,  chooses  to  regard  the  offence  as  technical,  by 
undertaking  to  redress  its  wrong  by  similar,  though  less  vio- 
lent, measures.  In  recent  times  they  have  been  less  frequent- 
ly resorted  to  than  formerly,  especially  by  the  more  powerful 
states  of  Europe  and  America  in  their  occasional  contro- 
versies with  each  other.  The  present  tendency  is  to  resort  to 
them  only  when  the  injured  state  is  considerably  more  power- 
ful than  its  adversary,  and  generally  with  the  effect  of  obtain- 
ing the  desired  redress  without  recourse  to  war.  "  Much  of 
what  appears  in  the  older  and  even  in  some  modern  books 
upon  the  subject  of  reprisals  has  become  antiquated.  Special 
reprisals,  or  reprisals  in  which  letters  of  marque  are  issued  to 
the  persons  who  have  suffered  at  the  hands  of  a  foreign  state, 
are  no  longer  made ;  all  the  reprisals  that  are  now  made  may 
be  said  to  be  general  reprisals,  carried  out  through  the  ordi- 
nary authorized  agents  of  the  state,  letters  of  marque  being 
no  longer  issued."* 

1  Hall,  p.  368  (note),  369-372;  I  Field,  Int.  Code,  pp.  471-473;  \\ 
Halleck,  pp.  423-433;  Manning,  Ferguson,  pp.  223-236;  III  Philli- 
pp.  145-160;  Creasy,  pp.  401-405;      more,  pp.  18-43;  I  Ortolan,  p.  346; 


266  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

Embargo.  An  embargo  is  a  form  of  reprisals,  and  consists 
in  the  detention  in  port  of  the  ships  of  all  nations,  or  those 
of  a  particular  nation,  pending  the  adjustment  of  an  existing 
controversy.  If  war  results,  the  detention  is  called  a  hostile 
embargo,  and  the  ships  of  the  offending  state,  and  their  car- 
goes, become  prize ;  if,  on  the  other  hand,  there  is  no  inter- 
ruption of  peaceful  relations,  the  embargo  is  raised,  when  the 
object  for  which  it  was  established  has  been  attained,  and  the 
vessels  detained  in  port  are  permitted  to  sail.'  The  United 
States  has  resorted  to  the  embargo,  as  a  means  of  redress,  upon 
four  occasions  in  its  history.  The  first,  imposed  in  consequence 
of  the  strained  relations  with  England,  was  estabhshed  in 
1794,^  and  authorized  the  President  whenever,  in  his  opinion, 
the  public  safety  should  so  require,  "  to  lay  an  embargo  on  all 
ships  and  vessels  in  the  ports  of  the  United  States,  or  upon  the 
ships  and  vessels  of  the  United  States,  or  the  ships  and  vessels 
of  any  foreign  nation,  under  such  regulations  as  the  circum- 
stances of  the  case  may  require,  and  to  continue  or  revoke  the 
same  whenever  he  shall  think  proper."  No  embargo  was  to 
be  laid,  however,  while  Congress  was  in  session,  and,  if  laid,  it 
was  not  to  continue  in  force  more  than  fifteen  days  after  the 
meeting  of  Congress. 

A  second  embargo  was  laid  on  "  all  ships  and  vessels  in  the 
ports  and  places  within  the  limits  and  jurisdiction  of  the 
United  States"  by  the  act  of  December  22,  1797;'  by  subse- 
quent enactments  the  restriction  was  extended  to  include  ves- 
sels engaged  in  the  coasting  trade."  A  third  embargo  was  im- 
posed by  the  act  of  December  22,  1807,  due,  in  part,  to  the 
continued  attempts  on  the  part  of  Great  Britain  to  exercise 

I  Wildman,  pp.  187-198;    Walker,  Halleck,  pp.  433-436 ;  III  Dig. -Int. 

Manual,  p.  94;   Woolsey,  pp.  188-  Law,  §  320. 

191;    Bluntschli,    §    500;    Boyd's  ''Act  of  June  4,  1794(1  Stat,  at 

Wheaton,  §§  291,  292,  293a,  293b;  Large,  p.  372). 

Lawrence,  International  Law,§  157;  '  2  Stat,  at  Large,  p.  451. 

Snow,  §35;  III  Dig.  Int.  Law, §  318  ;  ""Acts  of  December  22,  1807   (2 

Vattel,  liv.  ii.chap.  xviii.§§  342-354.  Stat,  at  Large,  p.  453);    March  12, 

'  II    Ferguson,  §§  166,  251 ;    III  1808(2  Ibid.  p.  473);  April  25,  1809 

Philliniore,  pp.  44-50;    Lawrence,  (2   Ibid.  p.  499);  June   9,    1809  (2 

Int.  Law,  §  158;   Heffter,  §  in;   I  Ibid.  p.  506). 


THE  CONFLICT   OF   INTERNATIONAL   RIGHTS  267 

the  right  of  impressing  seamen  from  American  vessels  on  the 
high  seas ;'  the  fourth,  and  last  instance  of  the  exercise  of  this 
right,  on  the  part  of  the  United  States,  occurred  at  the  out- 
break of  the  War  of  1812  with  Great  Britain.  The  conditions 
of  the  embargo  on  this  occasion  are  fully  set  forth  in  the  act 
of  April  4,  1812.^  This  enactment  laid  an  embargo  upon  all 
ships  and  vessels  in  the  ports  and  places  within  the  limits  and 
jurisdiction  of  the  United  States  which  were  bound  to  any 
foreign  port  or  place.  Vessels  in  ballast  were  excepted  from 
the  operation  of  the  statute,  which  was  to  remain  in  force  for 
a  period  of  ninety  days  from  the  date  of  its  passage.^ 

Pacific  Blockade.  The  practice  of  interrupting  commer- 
cial intercourse  with  certain  ports  or  coasts  of  a  state,  with  a 
view  of  securing  redress  for  an  international  wrong,  which  has 
become  known  as  the  right  of  pacific  blockade,  is  of  very  re- 
cent origin  ;  there  being  no  instance  of  its  exercise  prior  to  the 
year  1827.  In  that  year,  Greece  and  Turkey  being  at  war, 
those  portions  of  the  Greek  coasts  in  the  vicinity  of  which 
bodies  of  Turkish  troops  were  encamped,  were  blockaded  by 
the  fleets  of  Great  Britain  and  Russia;  the  action  of  the 
blockading  powers,  however,  was  regarded  as  a  measure  of 
hostility  by  the  Sultan  and  resulted  in  the  Turkish  defeat  at 
Navarino.  Pacific  blockades  have  been  subsequently  estab- 
lished, under  similar  circumstances,  and  in  such  numbers  that 
the  practice  bids  fair  to  increase,  rather  than  diminish,  as  a 
means  of  redress  of  international  grievances.  From  an  ex- 
amination of  the  cases  in  which  such  blockades  have  been  es- 
tablished the  following  conclusions  would  seem  to  be  war- 
ranted:* 

'Acts  of  December   22,  1807  (2  Manning,  pp.  143,  144;    II  Fergu- 

Stat.  at  Large,  p.  451);  January  9,  son,  pp.  236-240;  III  Phillimore, 

1808  (Ibid.  p.  453);  March  12,  1808  pp.  44-49;  I  Ortolan,  p.  350 ;  Walk- 

(Ibid.  p.  473);  April  25,  180S  (Ibid,  er,  Manual,  pp.  95,  96;  Woolsey,  § 

p.  499);  and  January  9,  1809  (Ibid.  118;    Boyd's  Wheaton,  §  293;   the 

p.  506).  Bodies  Lust,  V    Robinson's  Adm. 

*  Act  of  April  4,  1812  (2  Stat,  at  Rep.  234,  246. 

Large,  p.  700).  *  Similar  blockades  were  estab- 

'  For  a  discussion  of  the  subject  lished  by  France,  in    1832.  at   the 

of   embargoes,   see    Hall,    p.    366;  mouth  of  the  river  Tagus;  by  Eng- 


268  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

{a.)  They  have  been  resorted  to,  to  secure  redress  for  an 
offence  at  international  law,  in  cases  in  which  reparation  has 
been  demanded,  but  refused  or  unnecessarily  delayed,  and 
which,  in  former  times,  would  have  given  occasion  for  hostili- 
ties amounting  to  public  war. 

{b)  There  has  been  a  decided  difference  in  the  military  and 
naval  strength  of  the  states  interested,  the  blockading  power 
being,  as  a  rule,  very  much  stronger  in  a  military  sense  than 
the  alleged  offender  ;  and  the  blockades  have,  in  general,  been 
resorted  to  with  a  view  to  secure  adequate  redress  without  a 
resort  to  war. 

{c.)  The  exercise  of  the  right  of  pacific  blockade  can  affect 
only  the  commercial  intercourse  of  the  states  immediately 
concerned.  This  for  the  reason  that  the  ordinary  peaceful  re- 
lations of  other  powers  with  the  blockaded  ports  or  coasts,  in- 
cluding their  commercial  intercourse,  cannot  be  interrupted  or 
abridged,  without  their  consent. 

{d.)  In  recent  instances  of  the  exercise  of  the  right  the  ten- 
dency has  been  to  regard  the  practice  as  a  measure  of  interna- 
tional police,  in  which  several  powers  have  concurred  as  to  the 
justice  of  the  proceeding  and  the  necessity  for  its  exercise; 
and  the  blockade  has  been  raised,  or  discontinued,  and  normal 
commercial  relations  have  been  resumed,  so  soon  as  reparation 
has  been  made  by  the  offending  state. 

(e)  Although  called  "  blockades  "  the  interruptions  to  com- 

land  and  France,  in  1833,  at  the  by  Chili ;  in  1880  the  Turkish  port 
Dutch  ports  on  the  North  Sea  ;  by  of  Dulcigno  was  blockaded  by  ves- 
France,  in  1838,  at  the  port  of  Vera  sels  of  war  representing  Great  Brit- 
Cruz;  by  France  and  Great  Britain,  ain,  Austria,  France,  Russia,  and 
in  the  same  year  at  certain  ports  of  Italy.  —  III  Dig.  Int.  Law,  §  364; 
the  Argentine  Republic,  a  state  of  Lawrence,  Int.  Law,  §  159;  Walker, 
affairs  which  continued  for  ten  Int.  Law,  p.  157;  Snow,  pp.  79,  80; 
years  ;  by  Great  Britain,  in  1850,  in  GefTcken,  Revue  de  Droit  Int.  vol. 
the  ports  of  Greece;  in  i860  the  xi.x,  pp.  377-383;  Perels,  Ibid.  pp. 
Neapolitan  ports  of  Sicily  were  245,252,360;  Woolsey,  Ibid.  1875, 
blockaded  by  a  Sardinian  fleet,  in  p.  611  ;  Hall,  pp.  369-372;  II  Fer- 
connection  with  that  of  the  revolu-  guson,  pp.  240,  241  ;  Walker,  Man- 
tionists  in  Naples ;  in  1862  the  port  ual,  pp.  97-107;  Woolsey,  §  119; 
of  Rio  Janeiro  was  blockaded  by  vol.  xxix.  Revue  de  Droit  Int.  pp. 
Great  Britain;  in  February,  1879,  474-491;  Heflfter,  §  1 1 1  ;  Risley,  p. 
the  roast  of  Bolivia  was  blockaded  63;  III  Calvo,  §§  1832-1859, 


THE  CONFLICT   OF   INTERNATIONAL   RIGHTS  269 

merce  which  have  passed  by  that  name  have,  in  fact,  been 
measures  of  reprisal  in  the  nature  of  embargoes.  If  the  prac- 
tice becomes  general  the  rules  regulating  the  exercise  of  the 
right  will  be  assimilated  to  those  controlling  reprisals  in  the 
nature  of  embargoes,  rather  than  to  those  respecting  the  estab- 
lishment of  blockades,  properly  so  called,  in  time  of  public 
war.' 


References.  Three  methods  of  adjusting  international  disputes  have 
been  discussed  in  this  chapter — i.  Amicable  Adjustment;  2.  Mediation  ; 
3.  Arbitration.  Under  the  head  of  amicable  adjustment,  the  following 
references  are  suggested  :  Halleck,  vol.  i.  chap.  xiv.  §§  1-3  ;  Heffter,  liv. 
ji.  chap.  i.  §§  106-108  ;  Vattel,  book  ii.  chap,  xviii.  §§  324-326 ;  Creasy,  pp. 
390,  391 ;  Phillimore,  vol.  iii.  chap.  i.  pp.  2-5.  For  mediation,  see  Boyd's 
Wheaton,  pp.  97-99,  and  pp.  345,  706 ;  Halleck,  vol.  i.  chap.  xiv.  §§  5-6 ; 
Heffter,  liv.  ii.  chap.  i.  §  107;  Creas3^  pp.  390-392;  Kliiber,  chap.  iii. 
§§  318-321  ;  Vattel,  book  ii.  chap,  xviii.  §  328;  I  Dig.  Int.  Law,  §  49; 
HI  Calvo,  §§  1682-1756.  Under  the  head  of  arbitration,  see  Hall,  p. 
361;  Manning,  pp.  499-504;  Halleck,  vol.  i.  chap.  xiv.  §§  6-8;  Boyd's 
Wheaton,  §  288  ;  Vattel,  book  ii.  chap,  xviii.  §§  329-334;  Wildman,  vol.  i. 
p.  186;  Heffter,  §  109;  Kliiber,  §318;  Creasy,  pp.  83,  394-397,  698 ;  Philli- 
more, vol.  iii.  pp.  2-15  ;  G.  F.  De  Martens,  vol.  ii.  §  176  ;  Calvo,  vol.  iii.  §§ 
1706-1806;  vi.  Ibid.  §§338,  352-390;  ni  F.  De  Martens,  §§  138-154.  For 
the  schemes  which  have  been  suggested  for  the  peaceable  settlement  of 
international  differences,  see  Manning,  chap,  xiv.;  Amos,  "Science  of 
Law,"  pp.  345-359;  Amos,  "Political  and  Legal  Remedies  for  War"; 
Bernard,  "  Neutrality  of  England,"  pp.  494-506  ;  Wheaton,  "  History  of 
the  Law  of  Nations,"  pp.  750-758  ;  Laveleye,  "La  Guerre  en  Europe  et 
Arbitrage";  Abbot,  "Essays  on  Modern  International  Law,"  essay  v.; 
"The  Primacy  of  the  Great  Powers";  essay  vi.  "The  Evolution  of 
Peace";  Snow,  International  Law,  §  38;  vol.  ix.  "  Revue  de  Droit  In- 
ternational," pp.  161-206;  xix.  Ibid.  pp.  398,  472,  479  ;  xxix.  Ibid.  pp.  333- 

'  The    following   resolutions    re-  must  be  maintained  by  a  sufficient 

specting    pacific    blockades    were  force. 

adopted  by  the  Institute  of  Inter-  (3.)  Vessels    of    the    blockading 

national  Law  at  its  session  at  Hei-  power  which  do   not  respect  the 

delberg  in  1887  •  blockade     may     be     sequestered. 

(I.)  Foreign    vessels    may   enter  The  blockade  having  ceased,  they 

freely,  despite  the  blockade.  are  to  be  restored  to  their  owners, 

(2.)  Pacific  blockades  are  to  be  without  compensation  of  any  sort, 

officially  declared  and  notified,  and  — Rev.  de  Droit  Int.  vol.  xix.  p.  361. 


270  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

375;  XXX.  Ibid.  pp.  445-462;  "History  and  Digest  of  the  International 
Arbitrations  to  which  the  United  States  have  been  a  Party,"  by  John 
Bassett  Moore,  vols,  i.-vii.  For  the  Arbitration  Convention  adopted  by 
the  International  Peace  Conference  at  The  Hague,  on  July  29,  1899,  see 
Appendix  E  ;  see  also  the  articles  by  M.  Desjardins  in  the  "  Revue  des 
Deux  Mondes  "  for  September  i,  1899  (vol.  civ.  p.  5);  by  Captain  Alfred 
T.  Mahan,  of  the  United  States  Navy,  in  the  "North  American  Review  " 
for  October,  1899  (vol.  clxix.  p.  433);  by  W.  T.  Stead  in  "The  Forum  " 
for  September,  1899,  p.  i;  and  the  articles  entitled  "The  Conference 
and  Arbitration  "  in  the  "  Edinburgh  Review"  for  July,  1899  (vol.  cxc. 
note  389,  p.  190);  and  "A  Note  on  the  Peace  Conference"  in  the 
"  Quarterly  Review  "  for  October,  1899,  (vol.  cxc.  no.  350). 


CHAPTER  X 

WAR  :    DECLARATION,   EFFECTS,   THE   RULES   OF   WAR,  MARI- 
TIME WAR 

"  The  choler  and  manhood  that  you  have,  score  it,  in  God's  name,  upon  the 
fronts  of  your  enemies,  but  stain  not  the  honor  of  a  soldier  by  outraging  unarmed 
innocence.  Live  upon  your  means  like  soldiers,  and  not  by  pilfering  and  spoil- 
ing like  highway  robbers.  This,  if  you  do  not,  you  shall  ever  be  infamous,  and  I 
with  such  help  shall  never  be  victorious."  ' — Gustavus  Adolphus. 

The  Right  of  Redress.  As  there  is  no  superior  authority 
to  which  a  state  can  appeal  for  redress  when  any  of  its  sover- 
eign rights  have  been  trespassed  upon,  denied,  or  impeded  in 
their  exercise,  it  is  compelled,  as  a  last  resort,  to  redress  its 
own  injury  or  wrong.  This  it  does  by  a  suspension  of  all 
friendly  relations  with  the  offending  state,  and  by  a  resort  to 
such  acts  of  hostility  as  are  authorized  by  the  laws  of  war. 
Again,  in  the  performance  of  its  duty  of  protecting  its  citi- 
zens and  their  property  from  acts  of  domestic  violence,  a  gov- 
ernment sometimes  finds  its  ordinary  legal  machinery  inade- 
quate to  the  purpose,  and  is  compelled  to  make  use  of  the 
public  armed  force  in  order  to  compel  obedience  to  the  law, 
to  quell  insurrection  and  rebellion,  or  to  enforce  respect  for  its 
neutral  obligations.  In  one  case  the  state  uses  force  against 
another  state;  in  the  other  its  force  is  directed  against  a  por- 
tion of  its  own  population  and  the  military  operations  are  car- 
ried on  within  its  own  territory. 

War  may  therefore  be  defined  as  an  armed  contest  between 
states   or   parts   of  states.^      It    is   undertaken    by  one   state 

•  Lawrence,  Essays   on  Modern  who  dispute  by  force  of  arms"  (De 

International  Law,  p.  178.  Jure  Belli  ac  Pacis,  book  i.  chap. 

^  War  is  defined    by  Grotius  as  i.  par.  2).     It   is  defined  by  Vattel 

"  the  state  or  situation  of    those  as  "  that  state  in  which  we  prose- 


272  THE   ELEMENTS  OF  INTERNATIONAL  LAW 

against  another,  for  the  purpose  of  compelling  an  offending 
state  to  fulfil  its  obligations  as  a  party  to  international  law. 
It  is  undertaken  against  persons  within  its  territory  for  the 
purpose  of  compelling  obedience  to  its  municipal  laws.  When 
its  object  is  attained,  in  either  case,  war  becomes  unlawful  and 
must  cease. 

Rightfulness  of  War.  With  the  inherent  rightfulness  of 
war  international  law  has  nothing  to  do.  War  exists  as  a 
fact  of  international  relations,  and,  as  such,  it  is  accepted  and 
discussed.  In  defining  the  law  of  war,  at  any  time,  the  at- 
tempt is  made  to  formulate  its  rules  and  practices,  and  to  se- 
cure the  general  consent  of  nations  to  such  modifications  of 
its  usages  as  will  tend  towards  greater  humanity,  or  will  shorten 
its  duration,  restrict  its  operations,  and  hasten  the  return  of 
peace  and  the  restoration  of  the  belligerent  states  to  their 
normal  relations.' 

Causes  of  War.  Although  it  falls  within  the  province  of 
international  law  to  determine  how  war  between  civilized 
states  shall  be  carried  on,  and  with  what  formalities  it  shall  be- 
gin and  end,  it  is  impossible  to  deduce  from  the  history  of  in- 
ternational relations  any  precise  rule  for  determining  what  fact, 
or  facts,  shall  constitute  a  just  cause  for  war.  It  has  been  said 
that  a  perfect  right  of  a  sovereign  state  can  be  invaded,  or  de- 
nied, only  at  the  risk  of  war,  and,  in  so  far  as  international  law 
is  concerned,  a  state  is  legally  justified  in  regarding  the  denial 
of  such  a  right  as  a  sufficient  cause  for  war.     The  question  of 

cute  our  right  by  force  "  (Vattel,  war,  but  public  war." — Bas  t'^-.  Tin- 
Law  of  Nations,  book  iii.  chap.  i.  gy,  4  Dallas,  37;  Creasy,  pp.  360, 
§  i).  It  is  defined  by  Bynkershoek  361;  Field,  Int.  Code,  467-469;  II 
as  "  a  contest  carried  on  between  Ferguson,  §§  169-172;  III  Philli- 
independent  persons  for  the  sake  of  more,  p.  "]"]  \  Woolsey,  §§  114,  115; 
asserting  their  rights"  (Bynker-  Boyd's  Wheaton,  §  290;  Risley,  .p. 
shock,  Law  of  War,  p.  128);  by  67  ;  II  Twiss,  pp.  43-49  ;  Lawrence, 
Wheaton  as  "a  contest  by  force  §155;  IV  Calvo,  §§  1860-1865. 
between  independent  sovereign  '  I  Halleck,  pp.  439,440;  Boyd's 
states"  (Wheaton,  part  iv.  chap.  Wheaton,  §290;  Snow,  pp.  82,83; 
i.  §  6).  "Every  contention  by  force  Risley,  pp.  68,  69;  II  Twiss,  pp.  54, 
between  two  nations  in  external  55;  Creasy,  pp.  361-367;  Vattel,  liv. 
matters,under  the  authority  of  their  iii.  chap,  i,  §§  3,  4  ;  III  Phillimore, 
respective  governments,  is  not  only  pp.  54-84 ;  Woolsey,  §  116. 


THE    LAW   OF    WAR  2/3 

determining  whether  a  particular  cause  of  offence  is,  or  is  not, 
sufficient  to  justify  war,  is  strictly  internal  in  character,  and 
concerns  the  offended  state  alone.  With  the  government  of 
that  state  rests  the  entire  legal  and  moral  responsibility  of 
decision.  The  efficient  check  upon  a  nation  in  this  respect 
must  be  found  in  international  public  opinion  rather  than  in 
international  law.' 

Responsibility  for  a  Resort  to  War.  While  it  is  techni- 
cally true  that  a  violation  or  denial  of  a  perfect  right  is  regarded 
as  a  just  cause  for  war,  it  is  true  only  because  no  other  remedy 
is  provided  for  the  violation,  by  a  state,  of  a  rule  of  interna- 
tional law.  As  there  is  no  authority  above  a  sovereign  state 
to  which  it  can  appeal,  it  is  of  necessity  compelled  to  redress, 
by  its  own  means,  any  injuries  that  it  may  receive  from  another 
state.  But  it  by  no  means  follows  that  every  denial  of  a 
perfect  right  results  in  war,  even  when  justice  has  been  de- 
manded and  refused.  Those  in  whose  hands  the  government 
is  must  consider  whether  the  injury  that  has  been  received 
is  sufficient,  in  amount  or  importance,  to  counterbalance  the 
evils  that  are  involved  in  a  resort  to  war.  The  chance  of  suc- 
cess must  be  considered,  as  well  as  the  ability  of  the  state  to 
bear  the  burden  of  long-continued  hostilities. 

Moral  Considerations  Involved.  Certain  moral  considera- 
tions are  also  involved  in  the  decision,  the  responsibility  for 
which  no  government  can  evade.  "  If  reparation  can  other- 
wise be  obtained,  a  nation  has  no  necessary,  and  therefore  no 
just,  cause  for  war :  if  there  be  no  probability  of  obtaining  it  by 
arms,  a  government  cannot,  with  justice  to  their  own  nation, 
embark  it  in  war ;  and  if  the  evils  of  resistance  should  appear, 
on  the  whole,  greater  than  those  of  submission,  wise  rulers 
will  consider  an  abstinence  from  a  pernicious  exercise  of  right 
as  a  sacred  duty 'to  their  own  subjects,  and  a  debt  which 
every  people  owes  to  the  great  commonwealth  of  mankind, 

'  Vattel.liv.  iii.  chap.  iii.  §§  24-50;  1863-1898;  Bluntschli,  §§  515-521; 

I  Halleck,  pp.  439-442;  II  Fergu-  IITvviss,§  29;  II  Lorimer,  chap,  x.; 

son,  §  172;  III  PhilUmore,  pp.  57-76;  Klliber,  §  237;  Manning,  pp.  13I" 

Woolsey,  §§  115,  116;  IV  Calvo,  §§  140. 


274      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

of  which  they  and  their  enemies  are  alike  members.  A  war 
is  just  against  a  wrong-doer  when  reparation  for  wrong  cannot 
otherwise  be  obtained  ;  but  it  is  then  only  conformable  to  all 
the  principles  of  morality  when  it  is  not  likely  to  expose  the 
nation  by  whom  it  is  levied  to  greater  evils  than  it  professes 
to  avert,  and  when  it  does  not  inflict  on  the  nation  which  has 
done  the  wrong  sufferings  altogether  disproportionate  to  the 
extent  of  the  injury.  When  the  rulers  of  a  nation  are  re- 
quired to  determine  a  question  of  peace  or  war,  the  bare  jus- 
tice of  their  case  against  the  wrong-doer  never  can  be  the 
sole,  and  is  not  always  the  chief,  matter  on  which  they  are 
morally  bound  to  exercise  a  conscientious  deliberation.  Pru- 
dence in  conducting  the  affairs  of  their  subjects  is  in  them  a 
part  of  justice.'" 

Classification  of  Wars.  Wars  are  classified  according  to 
the  point  of  view  from  which  they  are  examined  or  discussed. 
They  are  classified  according  to  their  causes  into  wars  of  opin- 
ion, religions  wars,  zvars  of  independence,  of  conquest,  or  sub- 
jugation. In  a  military  sense  they  are  offensive  or  defensive. 
In  a  political  sense  they  are  classified  into  external  and  inter- 
nal wars.  Internal  wars  are  further  subdivided  into:  ist. 
Civil  ivars,  in  which  the  belligerent  parties  are  distributed 
over  a  large  part  of  the  territory  of  a  state,  the  object  being 
to  secure  a  change  of  government  or  laws,  but  not  at  the  ex- 
pense of  national  unity;  2d.  Rebellions  or  insurrections,  in 
which  a  portion  of  the  population  of  a  state  rises  against  the 
central  government,  sometimes  with  the  design  of  securing  a 
separation  from  it,  sometimes  with  a  view  to  resist  the  ex- 
ecution of  harsh  or  oppressive  laws,  or  measures  of  admin- 
istration.' 

'Mackintosh's  Collected  Works,  of  the  government.     A  civil  war  is 

p.  430,    cited    by    Creasy,    "  First  never   solemnly   declared ;    it    be- 

Platform  of  International  Law,"  pp.  comes  such   by  its  accidents — the 

362,  363.  number,  power,   and    organization 

^Insurrection  against  a  govern-  of  the  persons  who  originate  and 

ment  may,  or  may  not,  culminate  carry  it  on. — The  "  Prize  Cases,"  2 

in   an   organized    rebellion,  but   a  Black,  635.     The  ofifence  of  levying 

civil  war  always   begins  by  insur-  Avar  upon  a  state,  when  committed 

rection  against  the  lawful  authority  by  a  subject,  is  called  treason ;  and 


THE   LAW   OF   WAR 


275 


The  Belligerent  Parties.  The  states  which  are  parties  to 
a  particular  war  are  called  belligerents.  Their  operations  must 
be  carried  on  in  accordance  with  certain  accepted  usages, 
which  are  sanctioned  by  all  nations  under  the  name  of  the 
Laws  of  War.  Whenever  a  state  occupies  the  position  of  a 
belligerent,  it  is  vested  with  all  the  rights,  and  charged  with 
all  the  obligations,  incident  to  a  state  of  war.  The  parties  to 
an  internal  war  are  also  called  belligerents.  They  acquire 
belligerent  rights  so  soon  as  the  central  government  decides 
to  resort  to  warlike  methods  in  order  to  quell  the  insurrection. 
The  recognition  of  such  rights  by  the  central  government,  or 
by  foreign  powers,  in  no  way  involves  the  recognition  of  the 
rebellious  government  as  a  separate  political  organization.  It 
only  implies  that  the  laws  of  war  are  to  prevail  in  the  military 
operations  undertaken  for  the  purpose  of  suppressing  the  re- 


an  act  of  treason  is  an  act  of  war. 
When  participated  in  by  a  few  per- 
sons, it  is  dealt  with  by  the  civil 
authorities,  and  the  ofifenders  are 
tried  and  punished  by  the  courts 
of  the  state  having  jurisdiction  of 
the  offence;  when  participated  in 
by  such  numbers  of  persons  as  to 
m-ake  it  impossible  for  the  duly 
constituted  civil  authorities  to  deal 
with  it,  the  military  power  of  the 
state  is  employed  in  its  suppres- 
sion, and,  in  the  interest  of  hu- 
manity, what  are  called  "  bellig- 
erent rights  "  are  usually  accorded 
to  the  insurgents,  and  the  opera- 
tions undertaken  with  a  view  to 
quell  the  insurrection  are  carried 
on  in  conformity  to  the  rules  of 
civilized  warfare.  The  granting  of 
belligerent  rights,  however,  does 
not  impair  the  right  of  the  central 
government  to  try  those  who  have 
participated  in  the  insurrection  for 
treason,  or  for  such  other  offences 
as  may  have  been  committed  by 
them  during  the  period  of  active 
hostilities.  See  also  I  Halleck, 
pp.  454-473  ;  Vattel,  liv.  iii.  ch.  i. 
§§  1-5;    Hall,  §  5.    The  United 


States,  in  the  enforcement  of  their 
constitutional  rights  against  armed 
insurrection,  have  all  the  powers, 
not  only  of  a  sovereign,  but  also  of 
the  most  favored  belligerent. — La- 
mar vs.  Browne,  92  U.  S.  187.  A 
revolutionary  party,  like  a  foreign 
belligerent  power,  is  supreme  over 
the  country  it  conquers,  as  far  and 
as  long  as  its  arms  can  carry  and 
maintain  it ;  and  when  the  former 
government  resumes  its  possession 
of  the  territory  it  cannot  call  the 
citizens  or  subjects  of  a  third  na- 
tion to  account  for  obeying  the 
authority  which  was  temporarily 
supreme. — IX  Opin.  Att. -Gen.  p. 
140.  Although  it  has  been  doubted 
whether  a  mere  body  of  rebellious 
men  can  claim  all  the  rights  of  a 
separate  power  on  the  high  seas, 
without  absolute  or  qualified  recog- 
nition from  foreign  governments, 
there  is  no  authority  for  a  doubt 
that  the  parties  to  a  civil  war  have 
the  right  to  conduct  it  with  all  the 
incidents  of  lawful  war  within  the 
territory  to  which  they  both  be- 
long.—Ibid. 


276  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

bellion,  enforcing  the  laws,  and  restoring  the  supremacy  of  the 
national  government. 

Neutrals  :  the  Status  of  Neutrality.  All  states  in  the  civ- 
ilized world,  which  do  not  become  parties  to  an  existing  war — 
as  belligerents  or  allies — are  placed  by  the  declaration  of  war, 
or  the  outbreak  of  hostilities,  in  a  peculiar  status  of  non-inter- 
ference, hereafter  to  be  explained,  called  neutrality.  These 
non-participating  states  are  called  neutrals,  and  their  subjects 
are  known  as  neutral  subjects ;  the  peculiar  immunities  which 
become  operative  in  their  behalf,  in  respect  to  hostile  opera- 
tions, are  called  neutral  rights,  and  the  obligations  in  respect 
to  non-interference,  with  which  such  states  become  charged  at 
the  outbreak  of  war,  are  known  as  neutral  duties.^ 

It  will  thus  be  seen  that  the  status  of  belligerency  is  occu- 
pied by  the  states  which  are  the  immediate  parties  to  an  ex- 
isting war ;  the  status  of  neutralit}'-,  on  the  other  hand,  is  oc- 
cupied by  those  states  which  refrain  from  participating  in  the 
war,  either  as  belligerents  or  allies.  The  status  of  neutrality 
is  thus  seen  to  be  involuntary,  in  that  it  results  from  the  mere 
fact  that  war  exists  between  two  or  more  states,  with  all  of 
which  the  neutral  is  at  peace.  It  becomes  operative  at  the 
declaration  of  war,  or  at  the  outbreak  of  hostilities;  and  is 
made  known,  or  publicly  assumed,  by  a  formal  proclamation, 
issued  by  the  neutral  state,  in  which  the  fact  of  war  is  recog- 
nized and  its  subjects  are  warned  to  refrain  from  participating 
in  its  operations. 

Recognition  of  Belligerency  in  Internal  Wars.  It  has 
been  seen  that  belligerent  rights  are  acquired  by  the  states 
that  are  parties  to  a  particular  conflict  at  the  declaration  of 
war,  or,  in  the  event  of  there  being  no  formal  declaration,  at  the 
outbreak  of  hostilities;  at  the  same  moment  the  rights  and  ob- 
ligations of  neutral  states  become  operative.  In  respect  to  in- 
ternal wars,  however,  the  case  is  not  quite  the  same.  The 
central  government  is  engaged  in  the  suppression  of  a  domes- 
tic insurrection,  and,  in  virtue  of  its  independence,  it  is  entitled 

'  For  a  more  complete  discussion  chapter  entitled  "  Neutrality."  See 
of   the   neutral    relation,   see    the     also  II  Ortolan,  pp.  77-83. 


THE   LAW    OF   WAR 


277 


to  an  immunity  from  interference  in  so  doing.  It  is  only 
when  the  insurrectionary  movement  has  attained  such  form 
and  proportions  that  the  central  government  has  been  com- 
pelled to  resort  to  military  force  in  its  suppression — until,  in- 
deed, there  is  something  to  recognize — that  the  matter  as- 
sumes international  importance. 

The  question  of  according  or  withholding  rights  of  belliger- 
ency in  respect  to  the  insurgent  subjects  of  a  foreign  power  is 
one  which  every  sovereign  state  determines  for  itself,  in  view 
of  the  particular  facts  in  each  case.  As  to  what  conditions 
must  be  fulfilled  to  warrant  such  recognition  of  belligerency,  it 
may  be  said  that  the  conflict  must  be  one  amounting  to  public 
war;  the  mere  existence  of  contending  armed  bodies,  who  come 
into  occasional  conflicts,  not  constituting  a  state  of  public  war 
in  the  sense  in  which  that  term  is  here  used.  The  insurrec- 
tionary movement  must  have  been  participated  in  by  a  con- 
siderable portion  of  the  population  of  the  state;  the  relative 
strength  of  the  parties  must  be  such  as  to  give  some  assurance 
of  success  of  the  cause  of  the  insurgents;  they  must  have 
proved  their  ability  to  maintain  themselves  in  certain  well-de- 
fined limits  of  territory,  and  must  have  established,  and  must 
be  prepared  to  maintain,  such  governmental  institutions  as  will 
enable  them  to  enter  into  diplomatic  intercourse  with  the 
states  whose  recognition  is  sought.'  If  the  belligerency  of  the 
insurgents  be  recognized  before  the  conditions  above  described 
have  been  fulfilled,  it  may  properly  be  regarded  as  a  cause  of 
offence  by  the  state  within  whose  territories  the  insurrection  is 
in  progress.''     If,  on  the  other  hand,  it  be  delayed  too  long,  it  is 

'I    Dig.  Int.  Law,  §  69;    Dana's  or  sufficient  reason— at  the  recog- 

Wheaton,  §  23,  note;  Woolsey,  §§  nition   of  the    belligerency  of  the 

40,180;  Bluntschli,§§  28-38;  33  Al-  Confederate    States.      This  seems 

bany  Law  Journal,  p.  125  ;  I  Halleck,  strange,  as  the  Federal  Government 

pp.  68-72;    Boyd's  Wheaton,  §  27;  had    already  accorded   belligerent 

Hall,  pp.    31-42;     the   Santissima  rights    to    the    insurgents    by    its 

Trinidad,  7  Wheaton,  337;    vol.  ii.  avowed  determination  to  attempt 

Revue  de  Droit  International,  pp.  the  suppression  of  the  rebellion  by 

452-485.  a  resort  to  the  use  of  its  land  and 

^  The  United  States  complained  naval  forces,  and  by  its  conduct  of 

— itmust  be  admitted  without  good  the  military  operations  in  accord- 


278 


THE    ELEMENTS   OF   INTERNATIONAL   LAW 


calculated  to  give  rise  to  strained  relations  with  the  govern- 
ment of  the  insurgents  in  the  event  of  its  independence  being 
recognized.' 

Recognition  of  Independence.  In  addition  to  the  recogni- 
tion of  belligerent  rights  in  behalf  of  an  insurgent  government, 
a  state  may,  and,  in  the  case  of  a  successful  rebellion,  must, 
sooner  or  later,  recognize  the  independence  of  the  state  which 
has  come  into  being  as  the  result  of  an  exercise  of  the  right 
of  revolution.  If  the  independence  of  the  new  state  be  recog- 
nized during  the  continuance  of  hostilities,  the  parent  state 
may  regard  it  as  an  unfriendly,  or  even  as  a  hostile  act.  Such 
recognition,  however,  in   some   form   is  a  necessary  prelimi- 


ance  with  the  laws  of  war. — Hall, 
pp.  39-42  :  Woolsey,  §  180;  Procla- 
mation of  President  Lincoln,  April 
19,  1 86 1,  12  Stat,  at  Large,  p.  1258. 
'  The  policy  of  most  modern  states 
in  the  matter  of  recognizing  the 
belligerency  of  revolted  communi- 
ties is  one  of  extreme  conservatism. 
This  for  the  reason  that  neutral 
rights  and  obligations  come  into 
operation  as  a  consequence  of  such 
recognition,  and  with  them  the 
onerous  restrictions  upon  the  mari- 
time commerce  of  neutral  states 
which  are  incident  to  a  state  of 
war.  This  is  shown  in  the  failure 
of  the  United  States  to  accord  such 
recognition  to  any  of  the  numerous 
insurrectionary  movements  in  the 
island  of  Cuba,  some  of  which  have 
come  very  near  to  fulfilling  the  es- 
sential conditions  of  belligerency, 
and  many  of  which  have  appealed 
strongly  to  the  sympathies  of  the 
American  people. — Hall,  pp.  31-37: 
I  Dig.  Int.  Law,  §  60.  When  a  civil 
war  rages  in  a  foreign  nation,  one 
part  of  which  separates  itself  from 
the  old  established  government  and 
erects  itself  into  a  distinct  govern- 
ment, the  courts  of  this  country 
must  view  such  newly-constituted 
government  as  it  is  viewed  by  the 


legislative  and  executive  depart- 
ments of  the  Government  of  the 
United  States. — United  States  vs. 
Palmer,  3  Wheaton,  610.  If  the 
government  remains  neutral,  but 
recognizes  the  existence  of  a  civil 
war,  the  courts  of  the  country  can- 
not consider  as  criminal  those  acts 
of  hostility  which  war  authorizes, 
and  which  the  new  government 
may  direct  against  its  enemy. — 
Ibid.  Though  the  independence  of 
Buenos  Ayres  has  not  been  ac- 
knowledged by  the  United  States, 
we  have  recognized  the  existence 
of  a  state  of  civil  war  between  Spain 
and  its  colonies,  and  each  party  to 
that  war  is  respected  by  us  in  its 
exercise  of  all  belligerent  rights,  in- 
cluding the  right  of  capture. — The 
Santissima  Trinidad,  7  Wheaton, 
283  [337].  To  create  the  right  of 
blockade  and  other  belligerent 
rights,  as  against  neutrals,  it  is  not 
necessary  that  the  party  claiming 
them  should  be  at  war  with  a  sepa- 
rate and  independent  power;  the 
parties  to  a  civil  war  are  in  the 
same  predicament  as  two  nations 
who  engage  in  a  contest  and  have 
recourse  to  arms.  — Prize  Cases,  2 
Black,  635. 


THE   LAW   OF   WAR 


279 


nary  to  the  admission  of  the  new  state  into  the  family  of 
nations.' 

The  Right  to  Declare  War,  or  to  Initiate  Hostilities,  in 
Whom  Vested.  The  right  of  declaring  war  is  an  essential  at- 
tribute of  sovereignty.  It  is  the  act  of  the  supreme  govern- 
mental authority  of  a  state,  and  is  limited  in  its  exercise,  if  at 
all,  only  by  the  constitution  or  fundamental  law  of  the  state 
by  whom,  or  in  whose  behalf,  it  is  exercised.  In  former  times 
the  power  to  declare  war,  or  otherwise  involve  a  state  in  hos- 


'  France  not  only  recognized  the 
belligerency  and  independence  of 
the  United  States,  but  concluded  a 
treaty  of  alliance  with  that  power, 
in  consequence  of  which  the  mili- 
tary and  naval  forces  of  France 
were  employed  in  co-operation  with 
those  of  the  colonies  in  the  prose- 
cution of  the  War  of  the  Revolu- 
tion. —  I  Halleck,  p.  72;  Boyd's 
Wheaton,  §§  21a,  27d-27f;  Wool- 
sey,  §  40;  Hall,  pp.  90-94;  I  Dig. 
Int.  Law,  §  70;  Creasy,  pp.  670- 
677.  Prior  to  the  outbreak  of  war 
between  the  United  States  and 
Spain,  the  belligerency  and  also  the 
independence  of  the  people  of  the 
Island  of  Cuba  were  recognized  by 
the  Congress  of  the  United  States 
in  the  following  Joint  Resolution: 
"Whereas,  The  abhorrent  condi- 
tions which  have  existed  for  more 
than  three  years  in  the  Island  of 
Cuba,  so  near  our  own  borders, 
have  shocked  the  moral  sense  of 
the  people  of  the  United  States, 
have  been  a  disgrace  to  Christian 
civilization,  culminating,  as  they 
have,  in  the  destruction  of  a  Unit- 
ed States  battle  -  ship,  with  two 
hundred  and  sixty-six  of  its  officers 
and  crew,  while  on  a  friendly  visit 
in  the  harbor  of  Havana,  and  can- 
not longer  be  endured,  as  has  been 
set  forth  by  the  President  of  the 
United  States  in  his  message  to 
Congress  of  April  eleventh,  eigh- 
teen   hundred    and    ninety- eight, 


upon  which  the  action  of  Congress 
was  invited :  Therefore, 

" Resolved  by  the  Senate  and  House 
of  Representatives  of  the  United 
States  of  America  in  Congress  as- 
sembled. First,  That  the  people  of 
the  Island  of  Cuba  are,  and  of  right  • 
ought  to  be,  free  and  independent. 

"  Second.  That  it  is  the  duty  of 
the  United  States  to  demand,  and 
the  Government  of  the  United 
States  does  hereby  demand,  that 
the  Government  of  Spain  at  once 
relinquish  its  authority  and  gov- 
ernment in  the  Island  of  Cuba  and 
withdraw  its  land  and  naval  forces 
from  Cuba  and  Cuban  waters. 

"Third.  That  the  Presidentof  the 
United  States  be,  and  he  hereby  is, 
directed  and  empowered  to  use  the 
entire  land  and  naval  forces  of  the 
United  States,  and  to  call  into  the 
actual  service  of  the  United  States 
the  militia  of  the  several  states,  to 
such  extent  as  may  be  necessary 
to  carry  these  resolutions  into 
effect. 

"  Fourth.  That  the  United  States 
hereby  disclaims  any  disposition  or 
intention  to  exercise  sovereignty, 
jurisdiction,  or  control  over  said 
island  except  for  the  pacification 
thereof,  and  asserts  its  determina- 
tion, when  that  is  accomplished,  to 
leave  the  government  and  control 
of  the  island  to  its  people." — Joint 
Res.  No.  21,  April  20,  1898;  30 
Stat,  at  Large,  p.  738. 


280  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

tilities,  was  vested  in  the  sovereign ;  the  present  tendency  is 
to  restrict  his  power  in  this  regard,  usually  by  requiring  such 
declaration  to  be  made,  or  sanctioned,  by  the  supreme  legisla- 
tive authority;  this  is  especially  the  case  in  states  in  which 
representative  institutions  exist.  In  the  United  States  the 
power  to  declare  war  is  vested,  by  the  Constitution,  in  the 
Congress ;'  but  as  it  may  exist  without  being  declared — as  in 
case  of  invasion  by  a  foreign  power,  or  when  insurrection  or 
rebellion  exists — it  may  be  met  and  repelled  by  the  President, 
as  the  constitutional  commander-in-chief.^  The  power  to  de- 
clare war,  or  to  recognize  its  existence,  was  formerly  delegated 
to  colonial  governments,  and  even  to  commercial  companies ; 
such  delegation  of  authority,  however,  is  no  longer  recognized, 
and  the  power  to  initiate  hostilities  is  now  held  to  be  exclusive- 
ly lodged  in  the  central  government  of  the  state.  This  does 
not  prevent  distant  dependencies  from  recognizing  the  fact 
of  war,  if  declared  by  another  power ;  and  they  may  resist  in- 
vasion, or  even  carry  the  war  into  the  territory  of  the  enemy.' 
Formal  Declaration  of  War.  In  former  times  war  was  de- 
clared with  great  formalities.  This  is  no  longer  the  case,  the 
formal  declaration  having  ceased  when  the  necessity  for  its 
existence  had  passed  away.  When  the  relations  of  two  states 
become  strained  the  fact  is  at  once  known  throughout  the 

'  Constitution     of    the     United  declaration     by    Congress.  —  The 

States,  article  i.  §  8,  par.  1 1.     Con-  A»iy    IVaruiick,    2    Sprague,    123. 

gress  may  authorize  general  hos-  Upon   a    declaration    of   war   the 

tilities,  in  which  case  the  general  President  has  an  authority,  as  inci- 

laws  of  war  apply  to  our  situation,  dent  to  his  office,  to  emplo}^  all  the 

or  partial  hostilities,  in  which  case  usual    and    customary  means,    ac- 

the  laws  of  war,  so  far  as  they  act-  knowledged  by  the  law  of  nations, 

ually  apply  to  our  situation,  must  to   carry  it  into  effect. — Cargo  of 

be  noticed. — Talbot  vs.  Seeman,  i  Ship  Emulous,  i  Gallison,  563. 
Cranch,  I  (28).  ^  Boyd's  Wheaton,    §§   294-297;- 

^  The  Prize  Cases,  2  Black,  635,  I  Halleck,  p.  474;  II  Twiss,  §  29; 

668.     A  state   of  actual   war  may  III  Phillimore,  pp.  "j-j,  78,  153;  II 

exist  without  any  formal  declara-  Ortolan,   p.    11 ;  Woolse}',    §   120; 

tion   of   it  by    either   party;    and  Risley,  pp.  77-82 ;  Creasy,  pp.  405, 

this  is  true  of  both  a  civil  and  a  406;  II  Ferguson,  §  173.    For  cases 

foreign  war. — Prize  Cases,  2  Black,  of  hostilities  without  declaration  of 

635.     The  United  States  may  be  war,  see  vol.  xvii.  Revue  de  Droit 

engaged  in  war,  and  have  all  the  International,  pp.  19-49. 
rights  of  a  belligerent,  without  any 


THE   LAW   OF   WAR  28 1 

civilized  world,  and  the  subjects  of  the  unfriendly  powers  have 
sufificient  time  to  arrange  their  business  affairs,  and  to  accom- 
modate their  legal  relations  to  the  changed  conditions.  When 
all  attempts  at  peaceable  adjustment  have  failed,  diplomatic 
intercourse  ceases,  ministers  are  withdrawn,  and  the  military 
and  naval  forces  of  the  belligerents  are  mobilized  and  placed 
upon  a  war  footing.  So  far  as  the  opposing  nations  are  con- 
cerned, no  further  declaration  is  now  necessary.' 

Official  Notification  of  an  Intended  Resort  to  War.  Al- 
though the  practice  of  making  formal  declarations  no  longer 
obtains,  a  state  which  assumes  a  belligerent  attitude  towards 
another  is  obliged  to  give  public  notice  of  its  intention  in  each 
of  the  following  cases:  ist.  To  its  own  subjects;  2d.  To  neu- 
trals. This  notice  is  frequently  given  by  proclamations,  which 
contain  a  statement  of  the  cause  of  the  war,  and  of  the  pur- 
poses, or  motives,  for  which  it  is  undertaken.  They  also  con- 
tain the  date  after  which  a  state  of  hostility  will  legally  exist. 
This  is  a  matter  of  great  importance,  in  that  it  enables  neutral 
powers  to  give  effect  to  their  neutrality  laws,  to  issue  procla- 
mations of  neutrality,  and  to  fix  the  date  upon  which  their 
neutral  obligations  become  binding.  No  declaration,  or  notice, 
is  required  from  the  state  which  acts  on  the  defensive.^ 

'  III   Phillimore,  pp.  85-105;    I  and   ninety  -  eight,   including  said 

Halleck,  pp.  476,  477;  II  Twiss,  pp.  day,  between   the    United    States 

64-68;  Levi,  p.  281;  Boyd's  Whea-  of  America  and  the  Kingdom  of 

ton,   §§  297,   297a;   Hall,   pp.   374-  Spain.      Second.  That  the    Presi- 

382;  II  Ortolan,  pp.  11-24;  II  Per-  dent  of  the  United  States  be,  and 

guson,  pp.  262-267;  Walker,  Man-  he  hereby  is,  directed  and  empow- 

ual,  p.    104;    Lawrence,   Int.   Law,  ered  to   use  the   entire   land   and 

§  161.     The  following  is  the  text  of  naval  forces  of  the  United  States, 

the    Declaration    of    War    against  and  to  call  into  the  actual  service 

Spain,  adopted  by  the  Congress  of  of  the  United  States  the  militia  of 

the   United    States    on    April    25,  the  several  States,  to  such  extent 

1898  (30  Stat,  at  Large,  p.  364):  as  may  be  necessary  to  carry  this 

''Be  it  enacted  by  the  Senate  and  act   into   effect.     Approved,  April 

House    of  Representatives    of   the  25,1898."     For  examples  of  hostil- 

United  States  of  America  in  Con-  ities  without   declaration   of   w^ar, 

gress  assembled,  First.  That  war  be,  see  vol.  xvii.  Revue  de  Droit  Inter- 

and  the  same  is  hereby,  declared  national,  pp.  19-49. 

to  exist,  and  that  war  has  existed  '^  Vattel,  liv.  iii.  chap.  iv. ;  II  Fer- 

since  the  twenty-first  day  of  April,  guson,  pp.  262-267;  Hall,  pp.  380- 

Anno    Domini    eighteen    hundred  382;    II    Ortolan,   pp.    11-24;    II 


282 


THE    ELEMENTS   OF   INTERNATIONAL   LAW 


Effects  of  a  State  of  War.  The  direct  effects  of  a  state  of 
■war  are:  1st.  To  place  both  the  belligerent  states  and  their 
subjects  in  a  condition  of  non  -  intercourse  with  each  other. 
2d.  Each  citizen  of  one  state  becomes  the  legal  enemy  of  ev- 
ery citizen  of  the  other.'  This  state  is  legal,  not  actual,  for 
no  subject  of  either  state  can  take  the  life  of  an  enemy,  or 
make  captures  on  land  or  sea,  or  do  any  hostile  act,  without 
the  express  authority  of  his  government.  Commercial  inter- 
course between  subjects  of  the  belligerent  states  becomes  il- 
legal. Contracts  and  other  legal  obligations  are  suspended 
during  the  continuance  of  hostilities,  and  a  similar  rule  is  ap- 


Twiss,  pp.  64-78  ;  Boj^d's  Wheaton, 
§§  297,  297a  ;  I  Halleck,  pp.  476- 
479;  Levi,  p.  281  ;  Walker.  Manual. 
pp.  104,  105;  III  Phillimore.  pp. 
105-113.  For  manifestoes  of  Chili 
and  Peru  at  the  outbreak  of  the 
war  of  1878,  see  Foreign  Relations 
of  the  United  States,  1S79,  pp.  168, 
867,  874;  for  the  case  of  Russia  in 
1877,  see  Foreign  Relations  of  the 
United  States,  1877,  p.  470. 

^  In  a  state  of  war,  the  nations 
who  are  engaged  in  it,  and  all  their 
citizens  or  subjects,  are  enemies  to 
each  other. — Jecker  vs.  Montgom- 
er}%  18  Howard,  wo.  When  inter- 
national wars  exist,  all  commerce 
between  the  countries  of  the  bellig- 
erent, unless  permitted  by  the  sov- 
ereign, is  contrary  to  public  policy, 
and  all  contracts  growing  out  of 
such  commerce  are  illegal. — Coppel 
vs.  Hall,  7  Wallace,  542;  L'nited 
States  vs.  Grossmeyer,  9  Wallace, 
73;  Planters'  Bank  vs.  St.  John,  i 
Woods.  5S8  ;  The  Schooner  Rapid, 
I  Gallison,  295  ;  the  Hoop,  i  Rob. 
Adm.  Rep.  196,  Bynkershoek, 
Quest.  Pub.  Jur.  lib.  i.  chap.  3; 
Cramer  vs.  United  States,  7  Court 
of  Claims,  302 ;  Matthew  vs.  Mc- 
Stea,  I  Otto,  7;  III  Phillimore, 
pp.  127-144;  I  Halleck,  pp.  480- 
484 ;  Boyd's  Wheaton,  §§  298-304a  ; 
Levi,  pp'.  281-285;   Walker,  Man- 


ual, pp.  106-1 1 1  ;  Hall,  pp.  387-393  ; 
Manning,  pp.  166-177;  Lawrence, 
Int.  Law,  §§  162-165.  ^^^r  Pi^ts  ev- 
ery individual  of  the  respective  gov- 
ernments, as  well  as  the  govern- 
ments themselves,  in  a  state  of 
hostility  with  each  other.  All 
treaties,  contracts,  and  rights  of 
property  are  suspended.  The  sub- 
jects are  in  all  respects  considered 
as  enemies.  They  may  seize  the 
persons  and  property  of  each  other. 
They  ha\'e  no  persofta  standi  in 
judicio,  no  power  to  sue  in  the 
public  courts  of  the  enemy  nation. 
It  becomes  in  the  highest  degree 
criminal  to  comfort  or  aid  the  en- 
emy.—  The  Schooner  Rapid  and 
cargo,  I  Gallison,  303.  It  may  be 
averred  as  a  part  of  the  law  of  na- 
tions—  forming  a  part,  too,  of  the 
municipal  jurisprudence  of  every 
country— that  in  a  state  of  war  be- 
tween two  nations,  declared  by  the 
authority  in  whom  the  municipal 
constitution  vests  the  power  of 
making  war,  the  two  nations  and 
all  their  citizens  or  subjects  are  en- 
emies to  each  other.  The  conse- 
quence of  this  state  of  hostility  is, 
that  all  intercourse  and  communi- 
cation between  them  is  unlawful. — 
Jecker  vs.  Montgomery,  18  How- 
ard, 1 10.  1 12. 


THE   LAW   OF    WAR  283 

plied  to  partnerships  and  other  business  arrangements.  Shares 
in  tlie  public  stocks  of  either  state,  which  are  held  in  the  terri- 
tory of  the  other,  are  not  confiscated  or  forfeited.  Interest 
ceases  to  be  paid  at  the  outbreak  of  hostilities,  but  is  resumed 
at  the  establishment  of  peace,  the  interest  accrued  during  the 
war  becoming  payable  at  its  close.' 

Citizens  of  one  belligerent  power  in  the  territory  of  the 
other  at  the  declaration  of  war  may  be  required  to  depart,  or 
may  be  permitted  to  remain,  at  the  discretion  of  the  state  in 
whose  territory  they  are  resident."  The  latter  course  has  been 
pursued  in  most  recent  wars,  and  is  the  one  most  in  accordance 
with  the  dictates  of  humanity.  This  question  has  frequently 
been  made  the  subject  of  treaty  stipulation.  It  is  now  gen- 
erally recognized,  however,  that  such  persons  are  not  to  be 
made  prisoners  of  war,  and,  if  ordered  to  depart,  they  are  to 
be  given  a  reasonable  time  for  removal  with  their  property 
and  effects.  Subjects  of  the  enemy  who  are  permitted  to  re- 
main in  a  belligerent  state  may  be  subjected  to  such  special 
police  regulation  and  supervision  as  may  be  deemed  necessary 
by  the  government  for  its  security.  For  reasonable  cause  they 
may  be  required  to  depart,  or  may  be  forcibly  expelled.  If 
they  give  aid  or  information  to  the  enemy,  or  to  their  own 
government,  they  become  subject  to  the  laws  of  war,  and  may 
be  treated,  according  to  the  nature  of  their  offence,  as  prison- 
ers of  war,  or  as  traitors  or  spies,  and  may  be  punished  accord- 
ingly. 

The  Property  of  Enemy's  Subjects.     The  property  of  en- 
emy's subjects  found  within  the  territory  of  a  state  at  the  out- 

'  Manning,  pp.  175,  176;  Vattel,  Gallison,  p.   545.     The  duty  of  a 

liv.   iii.  chap.  v.  ^  77  ;    Brown  vs.  citizen,  when  war  breaks  out,  if  it 

U.  S.  SCranch,  140  ;  III  Phillimore,  be  a  foreign  war,  and  he  is  abroad,  is 

§§87-89;    IV  Calvo,  §§  1916-1924;  to  return  without  delay;  and  if  it 

il  Twiss,  §  58  ;    Dana's  Wheaton,  be  a  civil  war,  and  he  is  a  resident 

§  308,  note  157.  in  the  rebellious  section,  he  should 

'•'Boyd's  Wheaton,  §  304a,  note,  leave  it  as  soon   as  practicable. — 

For  a  discussion  of  the  right  of  the  The  William  Bagahy,  5  Wallace, 

sovereign  power  of  a  country  to  re-  377  ;  IV  Calvo,  §§  191 2-1914 ;  Hall, 

quire  the  services  of  all  its  citizens  §    126;     I    Halleck,    pp.   483-487; 

in  time  of  war,  see  The  Joseph,  I  Manning,  pp.  170-175- 


2S^  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

break  of  war  is  not  confiscable.'  Debts  due  an  enemy's  sub- 
ject are  suspended  during  the  war,  but  resunae  their  obligatory 
character  at  its  termination.  "  The  right  of  the  original  cred- 
itor to  sue  for  the  recovery  of  his  debt  is  not  extinguished  by 
the  war,  and  revives  in  full  force  on  the  restoration  of  peace." ' 
"  The  debts  due  by  American  citizens  to  British  subjects  be- 
fore the  war  of  the  Revolution,  and  not  actually  confiscated, 
were  judicially  considered  as  revived,  together  with  the  right 
to  sue  for  their  recovery,  on  the  restoration  of  peace  between 
the  two  countries.  The  commercial  treaty  of  1794  also  con- 
tained an  express  declaration  that  it  was  unjust  and  impolitic 
that  private  contracts  should  be  impaired  by  national  differ- 
ences; with  a  mutual  stipulation  that  neither  the  debts  due 
from  individuals  of  the  one  nation  to  individuals  of  the  other, 
nor  shares,  nor  moneys  which  they  may  have  in  the  public 
funds,  or  in  public  or  private  banks,  shall  ever,  in  any  event  of 
war  or  national  differences,  be  sequestered  or  confiscated.'" 

"  Some  writers  have  drawn  a  distinction  between  debts  due 
from  a  subject  of  one  belligerent  to  a  subject  of  the  other,  and 
debts  due  from  a  belligerent  state  to  subjects  of  the  other. 
It  is  said  that  there  exists  a  right  to  confiscate  the  former, 
while  the  latter  are  to  be  exempt.  The  Confederate  States 
acted  upon  this  distinction,  and  confiscated  all  property  and 
all  rights,  credits,  and  interests  held  within  the  confederacy  by 
or  for  any  alien  enemy,  except  public  stocks  and  securities. 
Lord  Russell  strongly  protested  against  this,  as  being  an  act 
as  unusual  as  it  was  unjust."  * 


*  Walker,     Manual,    §     48;     the  Brown   vs.   U.   S.   8   Cranch,  no; 

Sarah  Starr,  Blatch.  Prize  Cases,  Manning,  pp.  175,  176. 

650  ;  Manning,  pp.  171-175  ;  I  Hal-  ''Parliamentary     Papers,     1862, 

leek,  pp.  485-497;    III   Phill.  pp.  "Correspondence  Relating  to  the 

130-145  ;  Hall,  pp.  387-393  ;  Boyd's  Civil  War,"  p.  108.  Enemy  property 

Wheaton,  §§  298  -  304a ;  Lawrence,  found    in    the    United    States,  on 

Int.  Law,  §§  195-198;  III  Dig.  Int.  land,    at    the    commencement    of 

Law,  §  337.  hostilities,  cannot   be  condemned 

^  Boyd's  Wheaton,  §  305  ;  I  Hal-  without  a  legislative  act  authoriz- 

leck,  pp.  487-491 ;  Dana's  Wheaton,  ing  its  confiscation.    An  act  declar- 

§  308,  note  157.  ing  war  is  not  sucli  an  act. — Brown 

'  Boyd's  Wheaton,  §§  305-3o8a ;  vs.  United  States,  8  Cranch,  no. 


THE   LAW   OF    WAR  285 

"  But  this  is  the  only  instance  in  recent  times  of  such  meas- 
ures having  been  adopted,  and  it  is  an  example  that  seems  un- 
hkely  to  be  imitated.  The  confiscation  of  private  debts  of 
any  sort,  besides  exposing  the  state  doing  so  to  retaliation, 
only  cripples  the  enemy  in  a  very  indirect  way.  It  has  no 
effect  at  all  on  the  military  or  naval  operations  of  the  war,  and 
cannot,  therefore,  be  justified  on  any  principle."  ' 

Effect  of  War  upon  Treaties  of  Alliance,  Guarantee,  and 
Subsidy.  Treaties  of  alliance,  of  subsidy,  and  of  guarantee, 
made  in  anticipation  of  war,  come  into  effect  the  moment  war 
is  declared  by,  or  against,  one  of  the  allied  states.  Each  state 
which  is  a  party  to  a  treaty  of  alliance  must  decide  for  itself 
whether  the  case  contemplated  by  the  treaty  exists  or  not.  If 
its  decision  be  affirmative,  its  obligations  as  an  ally  go  into 
effect  immediately.  If  it  decides  in  the  negative,  its  action 
cannot  be  constrained  by  any  method  short  of  reprisals  or  war. 
The  other  allies,  however,  may  look  upon  its  failure  as  a  viola- 
tion of  treaty  stipulation,  which  they  may  regard  as  a  just 
cause  for  war.  A  treaty  of  subsidy  obliges  a  state  to  grant 
such  aid  in  troops,  supplies,  or  money  as  it  may  have  stipulated 
to  furnish,  either  on  formal  notification,  or  when  a  particular 
state  of  affairs  exists  which  was  contemplated  by  the  treaty. 
In  this  case,  as  in  that  of  an  alliance,  each  contracting  party 
decides  for  itself  whether  the  case  exists  which  is  contemplated 
by  the  treaty,  and  each  is  fully  responsible  for  its  decision. 
The  aid  agreed  upon  is  furnished  strictly  in  accordance  with 
the  provisions  of  the  treaty  of  subsidy,  and  the  obligation  in- 
curred is  fulfilled  when  the  stipulated  duty  has  been  performed. 

'  Boyd's   Wheaton,  §   308a ;   see  with    promptitude    to    remove    it 

also  authorities  cited  in  note  i.page  from  such  country,  impressed  with 

283.     In  the  case  of  the   William  its  character,  and  as  such  liable  to 

5«^rt'/tj  it  was  held  by  the  Supreme  the     consequences     attaching    to 

Court  of  the  United    States   that  enemy's   property. — The    JVilliatn 

personal  property  left  in  a  hostile  Bagaley,  5  Wallace,  377.     The  pre- 

country  by  an  owner  who  abandons  sumption  of  the  law  of  nations  is 

such  country  in  order  to  go  to  the  against  an  owner  who  suffers  such 

other  belligerent,  and  so  to  return  property  to  continue  in  the  hostile 

to  his  proper  allegiance  and  soil,  country  for  a  considerable  length 

becomes,  unless  an  effort  is  made  of  time,— Ibid. 


286  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

If  the  assistance  proves  inadequate  to  the  purpose,  or  if  it  be 
impossible  of  fulfilment,  no  obligation  rests  upon  the  sub- 
sidizing state  to  render  other  or  further  service  of  the  same 
kind. 

Treaties  of  guarantee,  in  so  far  as  they  relate  to  war,  usually 
consist  in  an  obligation,  assumed  by  one  or  more  states,  to  en- 
force respect  for  the  neutrality  of  a  third  state,  or  to  assure  the 
existence  of  such  a  state  within  certain  territorial  limits.  They 
become  effective  when  the  neutrality  of  the  protected  state  is 
threatened  from  any  quarter,  or  when  the  guaranteed  territory 
is  invaded,  or  menaced  with  invasion.  Subsidiary  treaties  may 
also  exist,  providing  in  detail  for  interference  in  either  of  these 
cases.  If  such  treaties  exist,  they  must  be  strictly  observed 
in  making  good  the  guarantee.' 

The  effect  of  war  upon  treaties  generally  has  already  been 
discussed.* 

The  Laws  of  War 

Character  and  Tendency  of  the  Laws  of  War.  That  de- 
partment of  international  law  which  treats  of  the  manner  in 
which  war  shall  be  carried  on  by  belligerents,  on  land  and  sea, 
is  called  the  Laivs  of  War.  These  laws  are  undergoing  con- 
stant modification,  to  adapt  them  to  the  ever-changing  con- 
ditions of  modern  warfare.  The  tendency  of  these  changes  is, 
and  always  has  been,  in  the  direction  of  greater  humanity  and 
liberality.     Harsh  usages  are  modified,  cruel  practices  become 

'  Vattel,  liv.  iii.  chap.  vi.  §§  78-  of  territorial    and    other    national 

102;    I    Halleck,   pp.   235-237;    II  rights  are  at  most  suspended  dur- 

Phillimore,  pp.  80-88;  II  Ortolan,  ing  wax  and  revive  at  peace,  unless 

pp.  76,  77;  Kliiber,  §§  148,  149,  157-  they    are  waived    by   the   parties, 

159;  Bluntschli,  §§446-449;  II  Dig.  or  new  and  repugnant  stipulations 

Int.  Law,  §§  148,  i5of.  are  made. —  Society,  etc.  vs.  New 

^  See  the  title   "Termination  of  Haven,  8  Wheaton,  464;  Walker, 

Treaties"  in  the  chapter   entitled  Manual,  §  46;  III   Phillimore,  pp. 

"  Treaties  and  Conventions."     See  792-811;   I  Halleck,  p.  497  ;  Wool- 

also  Hall,  pp.  382-389.  The  termina-  sey,  §160;  Boyd's  Wheaton,  §  275  ; 

tion  of  a  treaty  by  war  does  not  Lawrence,    Int.   Law,  §§    166,   167, 

divest  rights  of   property   already  168;    II  Dig.  Int.  Law,  §  135;    III 

vested  under  it.     Treaties  stipulat-  Ibid.  §§  336-337a. 
ing  for  a  permanent   arrangement 


THE   LAW   OF    WAR  287 

obsolete,  or  are  abandoned  by  treaty  or  general  consent,  and 
new  methods  are  constantly  suggested  for  diminishing  the  in- 
evitable hardships  of  war.  This  improvement  is  observable  in 
many  directions;  it  is  most  remarkable,  however,  in  the  treat- 
ment of  individuals,  combatant  and  non-combatant,  in  the 
theatre  of  war,  and  in  the  greater  consideration  shown  to  the 
wounded  and  prisoners  of  war.'  There  has  been  the  least 
progress  in  the  rules  relating  to  private  property  on  land  and 
sea.  The  Declaration  of  Paris  restrains  the  states  who  were 
parties  to  it  from  capturing  private  property  at  sea,  except  en- 
emy goods  in  enemy  ships  and  contraband  of  war.  The  prac- 
tice of  privateering  has  declined,  probably  never  to  be  revived. 
In  war  on  land  pillage  is  sternly  forbidden,  but  private  prop- 
erty may  still  be  taken  by  way  of  requisition.  Contributions 
are  still  recognized,  and  certain  kinds  of  property  may  be  capt- 
ured and  destroyed,  or  regarded  as  booty. 

There  are  no  indications,  at  present,  that  belligerents  will 
voluntarily  surrender  any  of  the  rights  which  they  now  ex- 
ercise over  private  property  on  land.  In  the  few  instances  in 
which  such  property  has  been  exempted  from  capture  or  req- 
uisition its  immunity  has  been  due  to  the  fact  that,  in  those 
instances,  rapidity  of  movement  was  an  essential  condition  of 
success,  which  could  not  have  been  attained  had  the  force  em- 
ployed, in  the  particular  undertakings,  been  compelled  to  de- 
pend for  its  subsistence  upon  the  slow  and  uncertain  methods 
of  requisitioning  supplies  from  an  unwilling  or  hostile  popula- 
tion.' The  recommendations  of  the  conferences  at  Brussels 
and  St.  Petersburg  illustrate  these  tendencies.  The  declara- 
tions on  the  subject  of  combatants  and  non-combatants,  the 


'  II  Ferguson,  §  169 ;  III  Phill.  pp.  the  United  States,  Appendix  A  ;  see 
77-84;  Creasy,  pp.  375,  376  ;  Man-  also  vol.  xxv.  Revue  de  Droit  Inter- 
ning, pp.  196-206;  Woolsey,  §§  130,  national,  pp.  321-338  ;  xxvi.  Ibid. 
131  ;  Lawrence.  Int.  Law,  §  184.  pp.  586-605;  VI  Pradier-Fodere,  §§ 

'For  histories  of  the  laws  of  war,  2651,    2652.      For   the    Laws   and 

seevol.  xxi.  Revue  de  Droit  Inter-  Usages  of  War  on  Land,  adopted 

national,    385.     For    attempts    to  by  the  Peace  Conference  at  The 

codify  the   laws   of  war,   see    Dr.  Hague  on  July  29,  1899,  see  Ap- 

Lieber's  Instructions  to  Armies  of  pendix  E. 


288  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

treatment  of  wounded  men  and  of  prisoners  of  war,  are  plain 
and  positive  in  character,  and  commend  themselves  to  all  na- 
tions. Those  on  the  subject  of  private  property  are  brief,  ob- 
scure, and  unsatisfactory,  reflecting  but  too  clearly  the  opin- 
ions upon  that  subject  of  those  who  framed  them. 

Subjects  Treated.  The  laws  of  war  have  chiefly  to  do  with 
the  following  subjects: 

{a)  The  forces  that  may  be  employed  in  war,  on  land  and 
sea. 

{b.)  The  methods  of  carrying  on  war. 

{c.)  The  instruments  that  may  be  employed  in  war. 

{d.)  The  treatment  of  the  public  and  private  property  of  the 
enemy. 

(^.)  The  treatment  of  non-combatants  in  the  theatre  of  mil- 
itary operations. 

(/.)  The  treatment  of  captured  persons,  or  prisoners  of  war. 

{g)  Crimes  and  offences  against  the  laws  of  war  ;  retalia- 
tion. 

{h.)  The  government  of  occupied  territory. 

(/.)  The  intercourse  of  belligerents  in  war. 

(y.)  The  termination  of  war  ;  cartels,  capitulations,  and  trea- 
ties of  peace. 

The  Forces  Employed 

Extent  of  the  Right  to  Use  Force.  International  law 
recognizes  the  fact  of  war,  and  sanctions  a  resort  to  hostile  meth- 
ods to  obtain  redress  for  an  international  wrong.  It  does  not 
sanction  or  approve  acts  of  indiscriminate  violence,  however, 
nor  the  use  of  force  in  excess  of  the  precise  amount  needed  to 
redress  the  injury,  or  its  continued  use  after  the  legitimate 
purpose  of  the  war  has  been  accomplished.' 

Status  of  Hostility.  It  has  already  been  seen  that  the  ex- 
istence of  a  state  of  war  makes  each  subject  of  one  belligerent 

'Lawrence,    Int.    Law,    §    185;  127,  177 ;  Creasy,  §§  385-389 ;   Ris- 

Woolsey,   §   131;     H    Ferguson,  §  ley,  pp.  106,  107.     Instructions  for 

171  ;  iV  Calvo,  §§  2033-2043  ;  Klii-  Government  of  the  Armies  of  the 

ber,  §  243 ;  Heflter,  §119;  Hall,  §§  United  States,  par.  16  (Lieber). 


THE   LAW  OF   WAR  289 

the  legal  enemy  of  every  subject  of  the  other.  An  individual 
domiciled  in  a  belligerent  state  becomes  an  enemy,  his  prop- 
erty becomes  enemy  property,  and,  as  an  enemy,  he  ceases  to 
have  a  legal  status  in  the  courts  of  the  hostile  state.  This  is 
a  consequence  of  the  relation  of  the  belligerent  states  to  each 
other.  The  states  are  at  war,  and  so  the  individual  units  who 
compose  them  must  share  the  same  hostile  relation.  This 
state  of  individual  hostility,  however,  is  legal,  not  actual,  and 
does  not,  of  itself,  justify  a  subject  of  either  state  in  taking  the 
life  of  an  enemy,  in  making  captures,  or  in  doing  any  act  of 
hostility  whatsoever.  Upon  this  point  the  international  usage 
is  plain.  No  individual  is  permitted  to  commit  any  hostile 
act,  save  in  self-defence,  without  the  positive,  express  authori- 
zation of  his  government.  Whoever  undertakes  an  act  of  hos- 
tility without  such  authorization  does  so  at  his  peril,  and  if 
captured  is  not  entitled  to  the  protection  of  the  laws  of  war.' 

Forces  Employed  on  Land.  In  general  war  is  carried  on 
by  the  regular  armed  force  of  each  belligerent  power.  The 
character  of  that  force,  and  its  composition,  are  internal  ques- 
tions, to  be  determined  by  the  municipal  law  of  every  state. 
In  addition  to  its  regular  armed  force  a  state  may  call  into  its 
service,  for  the  period  of  the  war,  or  for  a  shorter  term,  such 
additional  forces  as  it  may  deem  necessary  to  prosecute  the 
war  successfully.  This  force  may  consist  of  conscripts,  of 
volunteers,  or  of  such  militia  or  reserve  forces  as  are,  or  may 
be,  provided  for  by  its  constitution  and  laws.  This  force  must, 
in  general,  be  organized  and  disciplined,  commanded  by  re- 
sponsible officers,  and  should  either  be  uniformed,  or  required 
to  wear  some  distinguishing  mark  or  badge  by  which  its  mem- 
bers may  be  recognized  and  known.' 

MI  Halleck,  pp.  2-20;  Boyd's  397  ;  Woolsey,  §  125;  Boyd's  Whea- 
Wheaton,  §  356;  Woolsey,  §§  125-  ton,  §  356;  Kliiber,  §  267;  II  Fer- 
127;  III  Phill.  pp.  150-153;  Man-  guson,  pp.  291-294;  Walker,  Man- 
ning, pp.  206-209;  par.  57  Instruc-  ual,  pp.  134-137;  11  Halleck,  pp.  2- 
tions  for  Armies  of  the  United  6;  Brown  ■y.y.  U.  S.  8  Cranch,  133; 
States,  etc.  see  Appendix  A.  Talbot  vs.  Jansen,  3   Dallas,  160; 

^  Vattel,  liv.  iii.  chap.  xv.  §§  223-  IV  Calvo,  §§  2044-2064 ;  VI  Pradier- 

228;  III   Phillimore,   pp.  150-152;  Fodere,   §§2721-2732;    Lawrence, 

Risley,  pp.  108,  109;  Hall,  pp.  394,  Int.  Law,  §  170;  Art.  I.  Convention 

19 


290  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

Partisans  are  soldiers,  armed,  and  wearing  the  uniform  of 
their  army,  but  belonging  to  a  corps  which  acts  detached  from 
the  main  body,  for  the  purpose  of  conducting  minor  opera- 
tions of  war,  such  as  the  obtaining  of  information,  the  capt- 
ure of  convoys  and  supply  trains,  and  of  making  inroads  into 
the  territory  occupied  by  the  enemy.  If  captured  they  are 
entitled  to  all  the  privileges  of  prisoners  of  war.' 

A  Levde  en  Masse  is  a  general  rising  of  the  population  of  a 
state  to  resist  an  invader.  Such  risings  usually  take  place 
with  the  consent,  and  by  the  direction,  of  the  government  of 
the  invaded  state,  and  there  may  or  may  not  be  time  for  the 
movement  to  be  organized  and  regulated  by  the  government. 
In  such  cases  the  question  arises  :  Are  the  individual  members 
of  such  a  body  entitled,  if  captured,  to  be  treated  as  prisoners 
of  war?  The  weight  of  opinion  is  that  they  are,  so  long  as 
they  observe  the  laws  of  civilized  war  in  conducting  their 
operations.  Two  views  have  been  entertained  upon  this  sub- 
ject. One,  maintained  by  states  having  large  standing  armies, 
and  whose  military  operations  are  more  likely  to  be  offensive 
than  defensive,  holds  that  such  risings  are  unauthorized.  This 
view  is  largely  influenced  by  self-interest.  The  other,  held  by 
states  maintaining  small  military  establishments,  and  so  more 
concerned  with  defensive  than  offensive  operations,  justifies 
them  on  the  grounds  of  necessity  and  self-defence.  The  latter 
view  is  now  held  by  the  greater  number  of  states.  Of  those 
which  maintain  the  former  opinion  the  two  most  important, 
Prussia  and  Russia,  have  each,  at  different  times,  authorized 
such  risings  during  invasions  of  their  territories.^ 

of  the  Hague,  1899.  Troops  alone  ^  Rislej',  p.  no;  par.  81  Instruc- 
carry  on  the  war,  while  the  rest  of  tions  for  United  States  Armies  in 
the  nation  remain  in  peace.  And  the  Field  (G.  O.  100,  A.  G.  O.-  186, 
the  necessity  of  a  special  order  to  3);  II  Halleck,  pp.  6,  7;  General 
act  is  so  thoroughly  established  Halleck  confounds  "  partisans " 
that,  even  after  a  declaration  of  and  "  guerillas  "  under  the  same 
war  between  two  nations,  if  the  designation.  The  true  distinction 
peasants  themselves  commit  any  is  that  stated  in  the  text :  par- 
hostilities,  the  enemy  shows  them  tisans  act  with  the  authorization 
no  mercy,  but  hangs  them  up  as  he  of  their  government ;  guerillas  do 
would  so  many  robbers  or  banditti,  not. 
— Vattel.liv.  iii.chap.  XV.  §§  226,  231.  "Prussia  in  1807,  during  the  Na- 


THE   LAW   OF   WAR 


291 


Employment   of   Individuals   of   Semi -civilized    Races. 

The  use  of  native  allies  in  operations  against  barbarous  ene- 
mies who  do  not  recognize  the  rules  of  civilized  warfare  is 
determined  by  the  rule  already  stated ;  such  forces  must  be 
organized,  disciplined,  and  uniformed,  and  commanded  by  of- 
ficers who  are  capable  of  enforcing  obedience  to  the  laws 
of  war.  Their  number  bears,  in  general,  but  a  small  propor- 
tion to  the  aggregate  of  forces  employed,  and  they  are  used 
chiefly  as  guides  and  scouts  in  the  conduct  of  minor  mili- 
tary operations.'     The  indiscriminate  employment  of  savages, 


poleonic  wars.  Russia  in  1700  and 
again  in  181 2;  on  the  former  occa- 
sion to  resist  Charles  XII.  and  on 
the  latter  to  resist  Napoleon.  See 
also  Risley,  p.  11 1;  II  Halleck,  pp. 
7,  8;  Creasy,  pp.  483.  487-  At  the 
Brussels  conference,  in  1874,  a 
proposition  was  submitted  requir- 
ing such  general  levies  to  conform 
to  certain  conditions,  in  order  to 
secure  for  them  the  protection  of 
the  laws  of  war.  These  conditions 
were : 

"Art.  IX.  I.  That  they  have  at 
their  head  a  person  responsible  for 
his  subordinates. 

"  2.  That  they  wear  some  dis- 
tinctive badge  recognizable  at  a 
distance. 

"3.  That  they  carry  arms  open- 
ly; and, 

"4.  That,  in  their  operations, 
they  conform  to  the  laws  and  cus- 
toms of  war.  In  those  countries 
where  the  militia  form  the  whole 
or  a  part  of  the  army  they  shall  be 
included  under  the  denomination 
of  army. 

"Art.  X,  The  population  of  a 
non-occupied  territory,  who,  on  the 
approach  of  the  enemy,  of  their 
own  accord  take  up  arms  to  resist 
the  invading  troops,  without  hav- 
ing had  time  to  organize  them- 
selves in  conformity  with  Article 
IX.,  shall  be  considered  as  belliger- 
ents, if  they  respect  the  laws  and 


customs  of  war."  ^  See  also  Art.  II. 
Convention  of  The  Hague,  1899, 
which  are,  to  a  great  extent,  based 
upon  the  recommendations  of  the 
Brussels  Conference. 

The  effect  of  these  rules  is  made 
to  depend  upon  the  meaning  at- 
tached to  the  term  "occupied  terri- 
tory," as  used  in  a  previous  article. 
It  is  defined  in  Article  I.  to  be  "  ter- 
ritory actually  placed  under  the 
authority  of  the  hostilearmy."  And 
the  occupation  is  declared  to  ex- 
tend tothose  territories  "  where  this 
authority  is  established  and  can  be 
exercised.""  The  construction  of 
the  term  is  left  to  the  belligerent 
invader,  and,  so  long  as  the  views 
held  upon  the  subject  of  occupa- 
tion are  so  divergent  as  they  are  at 
present,  it  is  quite  likely  that  the 
rules  of  the  conference,  humane  as 
they  are  in  many  respects,  will  re- 
ceive somewhat  discordant  inter- 
pretations. 

'  Such  are  the  native  forces  em- 
ploved  by  Great  Britain  in  India, 
Chi'na,  Africa,  and  the  West  Indies  ; 
a  similar  employment  of  Indian 
scouts  in  operations  against  hostile 
Indians  is  authorized  by  law  in  the 
United  States.  See  also  Risley,  p. 
126;  II  Walker,  pp.  341-343- 

"  "  Proceedings    of   Brussels   Confer- 
ence, 1874,"  Articles  IX.  and  X. 
b  Ibid.  Article  I. 


292  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

whose  operations  cannot  be  controlled  by  the  belligerent  who 
avails  himself  of  their  services,  has  never  been  recognized  by 
international  law.' 

Guerillas.  The  term  ^;/^rz7/«  is  applied  to  persons  who,  acting 
singly  or  joined  in  bands,  carry  on  operations  in  the  vicinity 
of  an  army  in  the  field  in  violation  of  the  laws  of  war.  They 
wear  no  uniform,  they  act  without  the  orders  of  their  govern- 
ment, and  their  operations  consist  chiefly  in  the  killing  of  picket 
guards  and  sentinels,  in  the  assassination  of  isolated  individ- 
uals or  detachments,  and  in  robbery  and  other  predatory  acts. 
As  they  are  not  controlled  in  their  undertakings  by  the  laws 
of  war,  they  are  not  entitled  to  their  protection.  If  captured, 
they  are  treated  with  great  severity,  the  punishment  in  any 
case  being  proportioned  to  the  offence  committed.  Their 
operations  have  no  effect  upon  the  general  issue  of  the  war, 
and  only  tend  to  aggravate  its  severity.  Life  taken  by  them 
is  uselessly  sacrificed,  and  with  no  corresponding  advantage.' 

Forces  that  may  not  be  Used  in  War.  In  carrying  on 
military  operations  against  a  belligerent,  a  state  may  not  use, 
as  a  part  of  its  armed  force,  any  persons  or  corps  that  are  not, 
or  cannot  be,  subjected  to  military  discipline,  or  who  cannot 
be  restrained  from  committing  acts  of  cruelty  in  violation  of 
the  laws  of  war.  This  restriction  prohibits  the  use  of  bodies 
of  troops  composed  of  individuals  of  savage  or  semi-civilized 
races,  whose  cruel  instincts  lead  to  the  perpetration  of  all 
sorts  of  barbarities.     A  general  who  finds  the  force  of  his  ene- 

'  III  Phillimore,  p.  155.     It  was  and  punishment,  and,  unless  done 

such  employment  which  gave  oc-  away  with,   will    leave  a  stain  on 

casion  for  Lord  Chatham's  censure  :  the    national    honor." — Speech  of 

"  But   who   is    the   man  that   has  Lord  Chatham,  II  Adolphus,  His- 

dared  to  authorize   and   associate  tory  of  England,  p.  485.     See  also 

with  our  arms  the  tomahawk  and  IV  Calvo,  §§2056, 2057;  VI  Pradier- 

scalping-knife  of  the  savage?  to  Fodere,  §  2727. 
call  into  civil  alliance  the  wild  and         ^  Walker,  Manual,   pp.   135-138  ; 

inhuman  savage  of  the  woods;  to  II  Halleck,  pp.  6,  7  ;  III  Phillimore, 

delegate   to  the   merciless    Indian  p.  164;  Instructions  for  the  Govern- 

the  defence  of  disputed  rights  ;  and  ment  of  the  Armies  of  the  United 

to  wage  the  horrors  of  his  laarbarous  States,  pars.  82,  84  ;  Risley,  pp.  1 10, 

war  against  our  brethren .?    These  in,    126;   VI    Pradier- Fodere,  § 

enormities  cry  aloud    for    redress  2730. 


THE    LAW    OF    WAR  293 

my  composed  of  such  elements  is  justified  in  resorting  to  re- 
taliatory methods  to  compel  its  discontinuance.' 

Wars  with  Savages.  Civilized  states,  in  carrying  on  neces- 
sary wars  with  barbarous  races,  or  against  nations  which  are 
partly  civilized,  but  who  do  not  understand,  and  so  fail  to  ob- 
serve, the  laws  of  war,  have  peculiar  duties  and  responsibili- 
ties towards  such  opponents.  Their  irregular  and  barbarous 
usages  should  be  carefully  studied,  and  the  operations  under- 
taken against  them  should  be  so  planned  and  arranged  as  to 
render  it  impossible  for  serious  violation  of  the  rules  of  war 
to  occur.  The  task  is  not  one  of  serious  or  particular  diffi- 
culty. Barbarous  nations  yield  only  to  superior  force  or  su- 
perior cunning.  They  violate  the  rules  of  civilized  warfare 
chiefly  in  their  cruel  treatment  of  wounded  and  unwounded 
prisoners,  and  in  their  tendency  to  indiscriminate  slaughter, 
pillage,  and  destruction  while  passing  through  inhabited  dis- 
tricts. To  remedy  this,  the  forces  employed  against  them 
should  be  of  sufficient  strength  to  accomplish  the  legitimate 
purpose  of  the  war  as  expeditiously  as  possible.  Forces  in- 
ferior in  strength  to  th^  enemy  should  never  be  employed. 
Wounded  men  should  not  be  permitted  to  fall  into  their  hands  ; 
straggling  should  be  rigidly  prohibited  ;  small,  isolated  parties 
should  not  be  employed  beyond  the  lines  of  the  army  ;  and  the 
tactical  units  of  the  invading  force,  in  all  marches  and  military 
operations,  should  be  required  to  keep  within  supporting  dis- 
tance of  each  other." 

Forces  Employed  at  Sea.  In  conducting  naval  operations 
and  in  effecting  captures  at  sea,  a  state  makes  use  of  its  pub- 
lic armed  vessels,  manned  by  the  officers  and  men  of  its  regu- 
lar naval  estabhshment.      Its  naval  force  may  be  increased, 

1  To  this  class  belong  the  Bashi-  dier-  Fodere,  §  2727  ;   IV  Calvo,  §§ 

Bazouks,  employed  by  Turkey,  and  2049,  2050,  2056,  2057;    Field,  Int. 

some  of  the  Cossack  mounted  forces  Code,  §  739  ;  I  Guelle,  pp.  99-101 . 

in  the  service  of  Russia.    See  also  'Woolsey,  §   143;    III  Dig.  Int. 

Risley,  pp.  no,  iii;   Bluntschli,  §  Law,  §  348a;   Risley,  pp.  125,  126; 

559;  IIIPhillimore,p.i64;  Woolsey,  "Civilises  et  Barbares,"  vol.  xvii. ; 

§133;  Dana's  Wheaton,  §  343,  note  Revue  de  Droit  Int.  pp.  5,  447,  539  ; 

166;  Creasy,  pp.  429-432;  VI  Pra-  xviii.  Ibid.  pp.  186,  281. 


294  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

both  in  ships  and  men,  by  methods  similar  to  those  resorted  to 
to  increase  its  military  strength.  It  may  also  make  use  of 
privateers.' 

Privateers  or  maritime  volunteers  are  armed  vessels,  com- 
manded by  private  persons,  who  receive  a  commission  from  a 
belligerent  government  authorizing  them  to  make  captures  of 
enemy  ships  and  goods  on  the  high  seas.  These  commissions 
are  called  Letters  of  Marque.  Letters  of  Marque  and  Reprisal 
are  commissions  of  a  somewhat  similar  character,  which  were 
formerly  issued  to  private  persons,  authorizing  them  to  make 
captures  by  way  of  reprisal,  and  in  satisfaction  for  some  injury 
done  them  by  an  offending  state.    This  practice  is  now  obsolete. 

Although  the  practice  of  privateering  is  still  sanctioned 
by  international  law,  it  seems  hardly  probable  that  it  will  be 
extensively  resorted  to  in  future  wars.  Its  defence  has  been 
that  it  enabled  a  state  which,  from  policy  or  want  of  means, 
maintained  a  small  standing  navy,  to  make  a  considerable 
increase  in  its  naval  force  at  the  outbreak  of  war.  This 
increase,  however,  was  attended  with  serious  disadvantages. 
The  force  of  privateers  could  only  be  used  to  effect  captures  of 
unarmed  merchant  ships.  It  was  never  available  for  general 
naval  operations,  and  the  damage  done  to  the  enemy,  how- 
ever great,  was  at  best  but  indirect,  and  did  not  have  the 
effect  of  weakening  his  military  power.  The  belligerent  em- 
ployer of  privateers  incurred  the  same  responsibility  for  capt- 
ures made  by  these  cruisers  as  it  did  for  those  made  by  its 
public  armed  vessels,  while  its  control  over  their  officers  and 
crew  was,  at  best,  but  feeble  and  indirect.  It  had  but  little 
security  against  their  aggressions  upon  neutral  rights,  while  it 
was  absolutely  responsible  for  acts  done  by  them  in  their  exer- 
cise of  the  rights  of  search  and  capture  upon  neutral  vessels."- 

As  neutral  rights  steadily  increase,  and  are  more  and  more 

'  Risley,  pp.  111-113;  II  Halleck,  Mil  Phillimore,  pp.  150, 151,  533- 

pp.  9-20;  Boyd's  Wheaton,  §§  357-  536;   II  Twiss,  pp.  374-424;    Man- 

358a;    Woolsey,    §§    127-129;     III  ning,  pp.  156,157;  Hall,  pp.  525,  526; 

Phillirnore,  pp.  533-536  ;  Manning,  Creasy,  pp.  557,  558  ;  Dana's  Whea- 

pp.156-158;  Hall,  §§  180-183;  Law-  ton,  §  358,  note  173;    II  Halleck, 

rence,  Int.  Law,  §§  223,  224.  pp.  12-16;  Risley,  pp.  112,  113. 


THE    LAW   OF   WAR 


295 


strongly  insisted  upon  by  neutral  nations,  the  exercise  of  bel- 
ligerent rights  against  them  becomes  constantly  more  dififi- 
cult,  involving  a  knowledge  of  international  law  which  is 
rarely  possessed  by  the  commanding  officers  of  private  armed 
vessels,  and  presenting  questions  of  the  greatest  intricacy  and 
difficulty,  which  require  in  their  decision  the  fullest  knowledge 
of  the  rights  and  responsibilities  of  belligerents  and  neutrals. 
For  these  reasons  the  practice  of  privateering,  which  had  al- 
ways been  regarded  with  disfavor,  has  within  the  last  half  cen- 
tury been  much  less  frequently  resorted  to  than  formerly. 
Those  states  whose  policy  it  is  to  maintain  small  naval  estab- 
lishments in  time  of  peace  find  it  possible  to  increase  them,  at 
the  outbreak  of  war,  by  a  resort  to  methods  similar  to  those 
made  use  of  in  increasing  their  land  forces.  Ships  are  pur- 
chased or  chartered  by  the  government,  and  the  vessels  thus 
acquired  are  placed  under  the  command  of  regular  naval  offi- 
cers. Over  this  force  the  control  of  the  government  is  absolute 
and  complete.  It  possesses  the  advantage  that  it  can  be  used 
in  all  sorts  of  maritime  undertakings,  and  is  not  restricted  in  its 
operations  to  the  capture  of  unarmed  merchant  vessels. 

The  practice  of  privateering  has  been  very  much  restricted 
by  the  operation  of  the  rules  of  the  Declaration  of  Paris,  which 
will  be  discussed  under  the  head  of  maritime  capture.' 

Methods  of  Carrying  on  War 

General  Restrictions.  With  the  strategical  and  tactical 
methods  resorted  to  by  trained  and  disciplined  armies  in  their 
operations  against  each  other,  international  law  has  but  little 
to  do.  Such  operations  must  be  carried  on  in  accordance 
Avith  the  principle  that  no  forcible  measures  against  an  enemy 
which  involve  the  loss  of  human  life  are  justifiable  which  do 
not  bear  directly  upon  the  object  for  which  the  war  is  under- 
taken, and  which  do  not  materially  contribute  to  bring  it  to 
an  end.     International  public  opinion  severely  judges  useless 

'  III  Dig.  Int.  Law,  §§  383-385;     2197-2204,  2381-2397,  2548-2552, 
Dana's  Wheaton,  §  358.  note  173;      2590. 
II  Twiss,  §§  206,  207  ;    IV  Calvo,  §§ 


296  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

and  unnecessary  operations,  and  sharply  criticises  mistakes  and 
blunders  which  might  have  been  avoided  by  a  reasonable  ex- 
ercise of  foresight  and  skill,  and  fixes  the  responsibility  of 
error,  in  just  proportions,  upon  the  governments  which  author- 
ize such  measures  and  the  generals  who  execute  them.' 

Rule  of  Good  Faith;  Use  of  Deceit.  No  measures  can  be 
resorted  to  against  an  enemy  in  war  which  involve  a  breach  of 
good  faith.  An  attack  cannot  be  condemned,  or  complained 
of,  because  it  partakes  of  the  character  of  a  surprise,  because 
it  is  the  duty  of  a  belligerent  to  exercise  such  due  vigilance  as 
will  render  such  measures  abortive.  Deceit,  in  the  form  of 
circulating  false  information  in  order  that  it  may  fall  into  the 
hands  of  the  enemy,  is  justifiable,  because  it  is  the  enemy's 
duty  to  weigh  carefully  the  sources  from  which  he  receives 
intelligence.  The  services  of  traitors  and  deserters  may  be  ac- 
cepted, and  the  employment  of  spies  for  the  purpose  of  ob- 
taining information  is  legitimate,  but  no  person  can  be  com- 
pelled to  act  as  a  spy.  The  poisoning  of  wells  and  springs  is 
prohibited,  as  it  ever  has  been  since  the  laws  of  war  came  into 
existence.  The  food  and  water  supply  of  a  besieged  place  may 
be  shut  off,  however,  with  a  view  to  hasten  its  surrender.'* 

Use  of  the  Enemy's  Uniform  and  Flag,  It  is  forbidden  in 
war  on  land  to  make  use  of  the  enemy's  flag  for  purposes  of 
deceit.  It  is  also  forbidden  to  use  the  enemy's  uniform  ex- 
cept with  some  distinguishing  mark,  sufficiently  striking  in 
character  to  attract  attention  at  a  distance.  On  the  sea  the 
national  flag  of  a  public  armed  vessel  must  be  displayed  be- 
fore an  engagement  begins,  or  a  capture  is  made.  These  rules 
are  based  on  the  fact  that  flags  and  uniforms  are  used  for  the 
purpose  of  determining  the  national  character  of  troops  in  the 

'  Woolsey,  §§  131, 133;  II  Halleck,  ^11   Halleck,  p.  25  ;  Woolsey,  § 

pp.  20-22;  Risley,  pp.  106, 107;  Man-  133;  Risley,  pp.  1 19-121 ;  IV  Calvo, 

ning,  pp.  208,  209;  VI  Pradier-Fo-  §§  2106-2122;   VI   Pradier-Fodere, 

dere,  §§  2742,  2743;    I   Guelle,  pp.  §§  2747-2753;    Hall,  §§   185-188; 

91-94;  vol.  ii.  Revue  de  Droit  In-  Bluntschli,  §§   557-565;    I  Guille, 

ternational,  pp.  643;  iii.  Ibid.  288;  pp.   101-109;   Vattel,  liv.  iii.  chap. 

iv.  Ibid.  I,  381;   V.  Ibid.  321,  366;  viii.  §§  155-158;  III  Dig.  Int.  Law, 

Art.  23  Convention  of  the  Hague,  §§  347-349. 
i8q9. 


THE   LAW   OF   WAR  ^97 

field.  A  violation  of  these  rules  indicates  a  want  of  good 
faith,  a  quality  equally  obligatory  in  peace  and  war.' 

Giving  and  Receiving  Quarter,  and  Treatment  of  Individ- 
uals of  the  Enemy;  Forbidden  Practices.  A  belligerent 
cannot  refuse  to  give  quarter,  nor  can  he  announce  his  inten- 
tion to  give  no  quarter,  except  in  case  of  some  conduct  of  the 
enemy  in  gross  violation  of  the  laws  of  war,  and  then  only  in 
the  way  of  retaliation  for  similar  acts.  The  practice  of  firing 
upon  outposts,  picket -guards,  and  sentinels,  except  for  the 
purpose  of  driving  them  in  during  a  reconnoissance,  or  as  a 
preliminary  to  a  general  advance,  is  strictly  forbidden.  These 
individuals  of  the  enemy  are  particularly  helpless.  They  take 
no  part  in  operations  of  an  aggressive  character,  and  are  always 
ordered  not  to  attack.  They  are  to  resist  only  when  them- 
selves attacked,  and  yield  ground  only  to  a  superior  force  of 
the  enemy.'* 

The  rules  of  war  forbid  the  robbery  of  individuals  of  the  en- 
emy who  fall  into  the  hands  of  a  belligerent.  Their  clothing 
and  private  property  are  as  secure  from  violent  appropriation 
as  are  those  of  non-combatant  citizens ;  arms  and  articles  of 
public  property  in  their  possession  become  the  property  of 
the  captor's  government — never  the  private  property  of  an  in- 
dividual. The  wounding  of  prisoners,  or  the  infliction  of  ad- 
ditional injuries  upon  those  already  wounded  and  helpless,  is 
discountenanced  upon  pain  of  death,  as  offensive  alike  to  hu- 
manity and  the  rules  of  civilized  warfare.  The  power  of  these 
persons  to  do  harm  has  been  destroyed  by  the  fact  of  wound- 
ing, or  capture,  and  their  helpless  and  distressing  condition 
entitles  them  to  the  most  considerate  treatment.  A  similar 
reason  forbids  the  use  of  forcible  measures  against  prisoners 

1  II   Halleck,  pp.  25-29;    Risley,  '  II  Halleck,  pp.  72-75;  Arts.  12 

pp.  119-121;  Art.  7  Brussels  Con-  and  13  Brussels  Conference;  Risley, 

ference ;    I    Guelle,   pp.    102-106;  pp.   124-127;   Vattel,  liv.   iii.  chap. 

Hall,  §  187;   VI  Pradier-Fodere,  §  viii.§  140;  Art.  23  Convention  of  the 

2760;  Articles  22  and  23  Conven-  Hague,  1899;  III  Phillimore,  §  95; 

tion  of  the  Hague,  1S99;   but  see  Paragraphs   60-64,  American   In- 

Bluntschli,   §    565,    who,  possibly,  structions;  IV  Calvo,  §  2143;  Field, 

confuses  the  use  of  false  colors  at  Int.  Code,  pp.  496,  497  ;  Creasy,  pp. 

sea  with  their  use  on  land.  442-452;  Bluntschli,  §§  580-584. 


298  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

with  a  view  to  extort  from  them  information  as  to  the  force, 
positions,  or  intentions  of  the  enemy.' 

Instruments  that  may  be  Employed 
Instruments  of  War.  In  no  department  of  human  en- 
deavor has  greater  ingenuity  been  displayed,  in  recent  times, 
than  in  the  invention  and  improvement  of  arms,  projectiles, 
and  other  instruments  of  war.  Their  destructive  power  has 
kept  pace  with  the  increase  in  their  range  and  efficiency,  and 
with  the  rapidity  with  which  their  fire  can  be  delivered.  The 
result  has  been  to  make  war  so  destructive  as  to  shorten  its 
duration,  and  so  to  materially  diminish  the  losses  incurred  in 
proportion  to  the  forces  engaged  on  either  side.^ 

It  is  not  an  objection  to  a  weapon  or  projectile  that  it  is 
merely  destructive.  All  instruments  of  war  have  that  char- 
acter, some  of  them  to  a  remarkable  degree.  That  one  weap- 
on or  projectile  is  more  destructive  than  another  simply  means 
that  the  belligerent  adopting  it  has,  to  the  extent  of  its  supe- 
rior destructive  power,  a  legitimate  advantage  over  his  adver- 
sary. The  decision  as  to  whether  a  particular  instrument  may, 
or  may  not,  be  employed  in  war  will  depend  upon  the  wound 
or  injury  caused  by  its  use.  If  the  wound  produced  by  it 
causes  unnecessary  suffering,  or  needless  injury,  it  is  to  be  re- 
jected, otherwise  not.  This  rule  is  applicable  to  all  instru- 
ments of  whatever  character,  whether  weapons  or  projectiles, 
which  may  be  used  in  war.  The  application  of  this  rule  for- 
bids the  use  of  cutting  or  thrusting  weapons  which  have  been 
poisoned,  or  which  are  so  constructed  as  to  inflict  a  merely 
painful  wound.  To  this  class  belong  arrows  with  easily  de- 
tached heads,  etc.  The  recommendations  of  the  St.  Peters- 
burg Conference  upon  the  subject  of  explosive  projectiles,  for- 

^  Risley,  p.  130;    II  Halleck,  pp.  'Boyd's  Wheaton,  pp.  404,  405; 

22,73,74;    Manning,  pp.  210,  211 ;  Risley,  pp.  113 -115;    II   Halleck, 

Woolsey,§§  1 31-134;  Walker,  Man-  pp.  20,  22;  Woolsey,  §  133;  II  Orto- 

ual,  pp.  139,  140;     III  Phillimore,  Ian,  pp.  33,34;  VI  Pradier-Fodere, 

pp.  155-157,  162,  163;    Lawrence,  §§2754-2757;  I  Guelle,  pp.  91-101 ; 

Int.  Law,  §  186;  I  Guelle,  pp.  197,  Lawrence, Int.  Law,  §§  225-228;  IV 

198;  IV  Calvo,  §§  2134,  2135.  Calvo, § 2098;  Bluntschli,§§ 557-560. 


THE   LAW  OF  WAR  299 

bidding  the  use  of  projectiles  weighing  less  than  four  hundred 
grammes  {twelve  ounces  avoirdupois),  has  received  the  general 
sanction  of  civilized  nations.  The  adoption  of  this  rule  ren- 
ders unlawful  the  use  of  explosive  bullets  in  small-arms.'  The 
Declaration  of  the  Hague  Conference  of  1899  extends  this 
interdiction  to  include  "bullets  which  expand  or  flatten  easily 
in  the  human  body,  such  as  jacketed  bullets  which  do  not 
entirely  cover  the  projectile,  or  are  provided  with  incisions."* 

The  use  of  hot  shot,  and  of  chain  and  bar  shot,  has  been  re- 
garded as  questionable  by  some  authors,  apparently  because 
their  purpose  and  use  was  not  fully  understood.  Hot  shot 
were  used  in  engagements  between  forts  and  wooden  ships 
with  a  view  to  set  fire  to  the  latter.  Their  use  would  still  be 
authorized  for  the  same  purpose.  Chain-shot  and  bar-shot 
were  used  in  naval  engap^ements  for  the  purpose  of  cutting 
away  standing  rigging  and  spars.  For  these  objects  their  con- 
tinued use  would  be  lawful.  As  it  is  impossible  to  use  either 
form  of  projectile  in  modern  rifled  guns,  and  as  they  would  be 
alike  ineffective  against  modern  iron  -  clads,  which  have  no 
standing  rigging,  they  are  now  practically  obsolete.^ 

Balloons.  The  employment  of  balloons  for  the  purpose  of 
obtaining  information  as  to  the  movements  of  an  enemy,  or  as 
a  means  of  communication  with  a  besieged  place,  is  now  fully 
authorized  by  the  laws  of  war.  Officers  and  others  employed 
in  their  management  are  placed  upon  precisely  the  same  foot- 
ing as  persons  engaged  in  reconnoissance  duty,  and  are  en- 
titled to  the  same  consideration  ;  if  captured  they  cannot  be 
regarded  as  spies,  but  must  be  treated  as  prisoners  of  war.* 

Torpedoes.  Torpedoes,  as  instruments  of  both  offensive 
and  defensive  warfare,  have  come  into  general  use  within  the 

'Appendix   D;    III    Phillimore,  p.  95 ;    II  Ortolan,  pp.  30-34;    IV 

pp.  160-162;  I  Guelle,  pp.  94-96.  Calvo,  2098;  VI  Pradier-Fodere,  §§ 

'^  For  text  of  this  Declaration,  see  .^754-2757. 
Appendix  E;    IV  Calvo,  §§  2100-         *  Rislej',  p.  123;  Snow,  p.  91 ;  Hall, 

2102.  pp.  538,  539;  Art.  29  Hague  Con- 

'  III  Phillimore,  pp.  153-155;  ference,  Pari.  Papers,  1871,  Ixxii. ; 
Woolsey,  §  133;  Risley,  pp.  113-  III  Phill.  p.  164;  VI  Calvo,  §§  2096, 
115;  II  Halleck,  pp.  20-29  ;  Heff-  2097;  I  Guelle,  pp.  134, 135  ;  VI  Pra- 
ter, §  125;  Kliiber,  §  244;  I  Guelle,  dier-Fodere,  §  2766. 


300  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

last  twenty-five  years.  That  their  use  has  received  general 
sanction  is  shown  by  the  energetic  measures  which  have  been 
taken  by  most  modern  states  to  equip  their  navies  with  them, 
and  to  adopt  them  as  an  important  auxiliary  in  their  systems 
of  coast  defence.  Military  mines,  which  greatly  resemble  them 
in  purpose  and  destructive  effect,  have  been  regarded  as  an 
essential  feature  of  all  systems  of  permanent  fortification  since 
the  days  of  Vauban,  and  the  art  of  countermining  in  siege 
operations  has  kept  pace  with  the  development  of  military 
mining  as  a  means  of  offensive  warfare.  This  is  likely  to  be 
the  case  with  torpedoes.  As  new  forms  are  devised,  and  new 
methods  of  applying  them  are  invented,  corresponding  means 
of  counteracting  their  effects  will  be  discovered,  with  the  result, 
it  is  hoped,  of  restricting  within  the  narrowest  limits  their  ter- 
ribly destructive  effects.  On  the  other  hand,  if  their  offensive 
use  should  prove  to  be  capable  of  indefinite  development,  and 
if  the  coasts  and  harbors  of  a  state  be  so  skilfully  defended 
with  torpedoes  and  submarine  mines  as  to  make  it  practically 
impossible  for  hostile  fleets  to  approach,  then  the  object  of  the 
state  in  defending  its  ports  will  have  been  completely  attained, 
in  securing  to  the  inhabitants  of  its  sea-coast  towns  a  practical 
immunity  from  hostile  attack.' 

Torpedoes  and  Mines  in  Land  Operations.  The  use  of 
mines  and  countermines  in  the  attack  and  defence  of  places  is 
coeval,  in  its  origin,  with  the  science  of  modern  fortification, 
and  has  always  been  regarded  as  a  legitimate  method  of  in- 
juring the  enemy.  The  practice  of  planting  small  mines  or 
torpedoes  to  obstruct  the  advance  of  an  enemy  along  main 
roads  or  avenues  of  communication,  although  infrequently  re- 
sorted to,  would  seem  to  rest  on  the  same  grounds  as  the 
more  extensive  practice  of  mining  and  countermining.  Upon  • 
the  few  occasions  in  which  ;t  has  been  resorted  to,  it  has  en- 
countered such  serious  opposition  as  to  prevent  its  coming 
into  general  use  as  an  incident  of  military  operations  on  land. 


'  Woolsey,  p.  221,  note;  VI  Pra-      Foreign  Relations,  pp.  475,476;  IV 
dier-Fodere,  §  2757  ;  United  States     Calvo,  §  2098, 


THE   LAW   OF   WAR  3OI 

The  expense  of  establishing  the  system,  and  its  inefficiency  for 
the  purpose  to  which  it  has  been  appHed,  have  also  contributed 
to  prevent  its  adoption  as  an  expedient  of  civilized  warfare,' 

Efifect  of  Modern  Inventions,  and  of  Improved  Methods 
of  Attack  and  Defence.  The  discovery  of  new  methods  of 
attack  and  defence,  and  the  improvements  which  have  been 
made  in  the  range  and  efficiency  of  artillery  and  small-arms 
since  the  middle  of  this  century,  have  served  to  mark  an  epoch 
in  the  history  of  modern  war.  Standing  armies  and  navies 
are  now  maintained  at  a  point  in  numbers,  training,  and  effi- 
ciency never  before  reached,  or  even  attempted,  and  at  an  ex- 
pense which  absorbs  no  inconsiderable  portion  of  the  revenues 
of  most  modern  states.  These  causes  combined  have  so  in- 
creased the  cost  and  destructiveness  of  war  as  to  render  its 
occurrence  less  frequent,  and  to  materially  shorten  its  dura- 
tion, while,  by  reducing  the  time  during  which  operations  are 
carried  on,  and  territory  occupied  by  invading  armies,  they  have 
contributed  powerfully  to  restrict  its  most  injurious  effects.* 

The  Attack  of  Places.  In  the  attack  of  places  a  distinction 
is  made  between  forts  or  fortified  places,  and  what  are  called 
open  or  undefended  towns.  The  latter,  if  they  offer  no  resist- 
ance, cannot  be  attacked.  On  the  contrary,  it  is  the  first  duty 
of  the  commanding  general  of  the  force  occupying  them  to 
prevent  pillage,  and  to  insure  public  order  and  the  protection 

'  During  the  Peninsular  Cam-  its,  as  a  legitimate  operation  of  war 
paign  of  1862  it  was  proposed  by  —but  upon  the  ground  that, where 
General  Rains,  who  commanded  two  generals  differed  in  opinion  in 
the  rear  -  guard  of  Longstreet's  respect  to  the  propriety  of  a  par- 
corps  on  its  withdrawal  from  York-  ticular  operation,  the  junior  should 
town,  to  plant  a  number  of  explo-  give  way  to  the  senior,  or,  if  that 
sive  shells  in  the  road  along  which  course  seemed  preferable,  he  should 
the  Army  of  the  Potomac  was  ex-  seek  an  assignment  to  duty  in  con- 
pected  to  advance.  General  Long-  nection  with  river  and  harbor  de- 
street,  when  made  aware  of  the  fences,  "  where  such  things  are 
nature  of  the  proposition,  forbade  clearly  admissible." — Vol.  xi.  sen  i. 
its  being  carried  into  effect  on  the  Official  Records  of  the  Union  and 
ground  that  he  did  not  "  recognize  Confederate  Armies,  pp.  509-511, 
it  as  a  proper  or  effective  method  516,  517. 

of  war."     The  case  was  carried  to  ^  VI  Calvo,  §  2066;    II  Ortolan, 

the  Confederate  Secretary  of  War,  pp.  30-34. 
who  decided  it — not  upon  its  mer- 


302  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

of  private  property.  Fortified  places  may  be  taken  by  open 
assault,  or  may  be  reduced  by  regular  siege  operations.  If  an 
open  assault  be  attempted,  no  notice  is  given,  as  surprise  in 
such  an  operation  is  an  essential  condition  of  success.  The 
very  fact  of  war  is  a  sufficient  notice  to  the  non-combatant  in- 
habitants of  such  places  that  an  attack  is  at  least  a  probable 
contingency.  If  they  continue  their  residence  it  is  presumed 
that  they  do  so  with  full  knowledge  that  the  place  may  be- 
come the  centre  of  active  military  operations. 

It  should  be  remembered  in  this  connection,  however,  that 
peace  is  the  normal  state  of  maakind,  and  that  other  than 
military  conditions  now  prevail  in  the  location,  growth,  and 
development  of  cities  and  towns.  This  fact  must  be  recog- 
nized by  belligerent  states,  and  by  their  generals  commanding 
in  the  field.  There  is  scarcely  a  fortified  place  now  in  exist- 
ence which  does  not  contain  a  large  contingent  of  non-com- 
batant population,  composed,  in  great  part,  of  persons  whose 
circumstances  are  such  as  not  to  permit  them  to  change  their 
residence  at  will. 

This  fact  is  now  considered,  in  the  fortification  of  important 
centres,  by  placing  the  defensive  works  beyond  the  range  of 
siege  artillery.  The  claims  of  these  defenceless  persons  should 
constantly  be  borne  in  mind  by  all  those  who  have  to  do  with 
siege  operations,  the  duty  of  consideration  falling  with  equal 
force  upon  besiegers  and  besieged.  No  measures  directed 
against  a  besieged  place  are  justifiable  which  are  calculated  to 
increase,  unnecessarily,  the  hardships  of  their  already  distress- 
ing condition.  The  improved  methods  of  conducting  siege 
operations  make  it  possible  to  neutralize  fortified  places  by 
close  investment,  and  to  reduce  them  by  restricting  the  attack 
to  the  defensive  works  alone.  Commanding  officers  of  such 
places  are  not  justified  in  persisting  in  the  defence  when  the 
burden  of  such  defence  begins  to  bear  with  deadly  effect  upon 
their  non-combatant  population.' 

•Risley,  pp.  116-118;  II  Halleck,  pp.  872.  883,  889;  IV  Calvo,  §§  2067- 
pp.  90-93  ;  Woolsey,  §  138;  Foreign  2097;  VI  Pradier-Fodere,  §§  2779- 
Relations  of  United  States,  1879,     2786;  I  Guelle,  pp.  109-122. 


THE    LAW   OF    WAR  303 

Duty  of  a  Commanding  Officer  of  a  Besieged  Place  in 
the  Matter  of  Surrender.  The  questions  of  defence  in  the 
case  of  a  garrisoned  fort  and  a  fortified  town  are  by  no  means 
the  same.  Duty  may  require  a  commander  in  the  former  case 
to  resist  to  the  last ;  in  the  latter  considerations  of  humanity 
enter  into  the  problem  of  defence,  and  great  weight  must  be 
attached  to  them  when  the  question  of  surrender  is  presented 
to  him  for  decision. 

In  former  times  there  were  instances  in  which  the  com- 
manding ofificer  of  a  besieged  place  incurred  some  penalty  by 
protracting  his  defence  beyond  the  time  when  such  defence 
could  be  maintained  with  any  reasonable  chance  of  success. 
This  is  no  longer  the  case.  The  defence  of  a  place  is  a  ques- 
tion over  which  a  besieger  has  no  control.  The  commanding 
ofificer  of  the  besieged  place  may  therefore  protract  his  defence 
so  long  as  any  military  advantage  accrues  to  his  own  govern- 
ment by  so  doing.  When  no  such  considerations  are  involved, 
however,  and  the  question  of  defence  is  limited  to  the  place 
itself,  a  commander  is  justified  in  continuing  it  so  long  as 
any  hope  of  success  remains.  When,  in  his  opinion,  it  can 
no  longer  be  hopefully  maintained,  any  further  sacrifice  of 
life  is  unwarranted,  and  it  becomes  his  duty  to  surrender.  But 
this  is  a  duty  which  he  owes  to  his  country  and  to  the  men 
under  his  command,  and  not  to  the  enemy.  If  his  force  is 
sufificient  to  justify  him  in  such  an  undertaking,  it  is  proper 
for  him  to  make  the  attempt  to  cut  his  way  out.  Whenever 
he  surrenders  he  is  entitled  to  demand,  for  himself  and  for 
his  command,  the  rights  of  prisoners  of  war,  and  his  enemy 
is  not  justified  in  refusing  to  grant  him  such  rights,  still  less 
in  threatening  to  deny  quarter  to  himself  or  his  garrison.  On 
the  other  hand,  should  he  blindly  refuse  to  surrender  when 
defence  is  no  longer  possible,  and  so  compel  his  enemy  to 
take  the  place  by  assault,  he  cannot  complain  of  any  loss 
of  life  that  may  legitimately  ensue,  nor  can  he  expect  his 
antagonist,  in  the  heat  of  an  attack,  to  recognize  his  tender 
of  surrender  when  the  time  for  such  tender  has  passed  away.' 

'  Risley,  pp.  124,  125;  II  Halleck,  pp.  90,  91  ;  IV  Calvo,  §  2138;  Snow, 


304  THE    ELEMENTS  OF   INTERNATIONAL   LAW 

Devastation.  The  practice  of  laying  waste  a  portion  of 
the  territory  of  the  enemy,  as  a  measure  of  military  neces- 
sity, is,  at  present,  happily  less  frequent  than  was  formerly 
the  case.  It  was  resorted  to  upon  at  least  two  occasions, 
however,  during  the  American  civil  war,  once  by  General 
Sherman,  during  his  march  from  Atlanta  to  Savannah,  and, 
subsequently,  during  his  northward  march  through  the  Caro- 
linas,  and  again  by  General  Sheridan  in  the  Shenandoah  Val- 
ley during  the  autumn  of  the  year  1864.  The  rule  in  re- 
spect to  the  devastation  of  the  territory  of  the  enemy  is 
deduced  from  the  general  principle  of  international  law,  that, 
in  time  of  war,  a  state  may  resort  to  such  measures,  involv- 
ing the  use  of  force,  as  are  necessary  to  secure  the  objects 
for  which  the  war  was  undertaken.' 

"  The  same  general  rule,  which  determines  how  far  it  is 
lawful  to  destroy  the  persons  of  enemies,  will  serve  as  a 
guide  in  judging  how  far  it  is  lawful  to  ravage  or  lay  waste 
their  country.  If  this  be  necessary,  in  order  to  accomplish 
the  just  ends  of  war,  it  may  be  lawfully  done,  but  not  other- 
wise.^  Thus,  if  the  progress  of  the  enemy  cannot  be  stopped, 
nor  our  own  frontier  secured  ;  or  if  the  approaches  to  a  town, 
intended  to  be  attacked,  cannot  be  made  without  laying  waste 
the  intermediate  territory,  the  extreme  case  may  justify  a  re- 
sort to  measures  not  warranted  by  the  ordinary  purposes  of 
war."^  Devastation  is  therefore  justified:  (i.)  When  dictated 
by  military  necessity,  as  when  property  is  destroyed  in  battle 

pp.  94,  95.  The  Duke  of  Welling-  531,  532;  Par.  14-17  Instructions 
ton,  in  a  despatch  to  Mr.  Canning  for  the  Government  of  the  Armies 
bearing  date  of  February  3,  1820,  of  the  United  States  in  the  Field 
maintained  the  view  that  the  gar-  (G.  O.  100,  A.  G.  O.  1863);  II  Twiss, 
rison  of  a  besieged  place  that  re-  int.  chap.  pp.  xl.  xli.  125,  126;  Vat- 
fused  to  surrender  could  be  put  to  tel,  liv.  iii.  chap.  ix.  §§  161-63;  VI 
the  sword.  It  is  to  be  said  to  his  Pradier-Fodere,  §§  2770-2774;  IV 
credit,  however,  that  he  never  ap-  Calvo,  §§  221 5-2217. 
plied  the  rule  in  practice. — Well-  ^Boyd's  Wheaton,  §§  347-3513; 
ington  Despatches,  vol.  i.  p.  80,  Vattel,  liv.  iii.  chap.  ix.  §§  161-166  ; 
cited  by  Creasy,  p.  452.  See  also  Creasy,  §§503-505  ;  Field,  Int.  Code, 
Creasy,  pp.  449-452  ;  I  Guelle,  pp.  p.  536  ;  Hall,  pp.  432,  541  ;  II  Orto- 
109-122;  Vattel,  liv.  iii.  chap.  viii.  Ian,  pp.  35-56;  IV  Calvo,  §§  2215- 
§  143;  VI  Pradier-Fodere,  §  2784.  2219. 

'  Risley,  pp.  115,  116;  Creasy,  pp.  '  Boyd's  Wheaton,  §  347. 


THE  LAW  OF  WAR  305 

by  the  fire  of  artillery,  or  by  the  movement  of  troops ;  or  where 
the  vicinity  of  a  besieged  place  is  cleared  of  houses,  crops,  for- 
ests, and  the  like,  in  order  to  facilitate  siege  operations ;  or 
when  villages  or  detached  buildings  are  fired  to  cover  the  re- 
treat of  an  army,  or  when  bridges  are  destroyed,  or  canals 
diverted  from  their  course  in  order  to  prevent  pursuit.  (2.) 
Where  a  portion  of  territory  is  laid  waste  by  way  of  retaliation, 
or,  in  an  extreme  case,  to  prevent  an  incursion  of  the  enemy,  or 
to  deprive  him  of  food  and  forage  necessary  for  the  support  of 
his  armies.'  "  Destruction,  on  the  other  hand,  is  always  ille- 
gitimate when  no  military  end  is  served,  as  in  the  case  when 
churches  or  public  buildings,  not  militarily  used,  and  so  situ- 
ated or  marked  that  they  can  be  distinguished,  are  subjected 
to  bombardment  in  common  with  the  houses  of  a  besieged 
town." '  When  devastation  is  occasioned  by  pillage,  or  by 
the  wanton  destruction  of  houses,  crops,  and  trees  by  troops 
wanting  in  discipline,  it  becomes  an  offence  against  the  laws 
of  war,  and  its  discontinuance  may  be  compelled  by  measures 
of  retaliation.' 

Usages  of  War  at  Sea.  The  usages  of  war  at  sea  are  the 
same  in  substance  as  those  on  land,  although,  from  the  circum- 
stances of  the  case,  they  are  much  simpler  of  application.  The 
same  rules  apply  as  to  giving  and  receiving  quarter,  and  as  to 
the  treatment  of  wounded  and  unwounded  prisoners  of  war. 
The  crews  of  captured  merchant  vessels  of  the  enemy  are  made 
prisoners  of  war.  When  neutral  vessels  are  seized  for  carry- 
ing contraband,  or  for  attempting  to  violate  a  blockade,  their 
crews,  not  being  belligerents,  are  not  subject  to  detention 
as  prisoners  of  war,  unless  by  their  conduct  they  render  such 
restraint  necessary.     As  to  the  use  of  false  colors  in  maritime 

'  Vattel,  liv.   iii.  chap.  ix.  §§  142,  ^  Hall,  p.  533. 

166,  167;  De  Martens,  Precis,   liv.  MI  Halleck,  pp.  1 17-1 19  ;  Vattel, 

viii.  chap.  iv.  §§  279-283;  Kliiber,  liv.  iii.  chap.  ix.  §§  167,  168;  Hall,  pp. 

§§    262-265;    Hall,  pp.    531-534:  531-535;  Boyd's  Wheaton,  §§347- 

Par.  15  Instructions  for  Armies  of  351a;  II  Twiss,  pp.  124,   125;  Ris- 

the  United  States,  etc.;  II  Twiss,  ley,  pp.  115-118;  Creasy,  pp.  531- 

pp.  125,   126;  Boyd's  Wheaton,  §§  534;  Articles  22  and  23  Hague  Con- 

347,  351a;  IV  Calvo,  §§  2215-2219;  vention  of  1899. 
Hall,  §186. 


306  THE   ELEMENTS  OF  INTERNATIONAL   LAW 

warfare,  the  practice  is  that  a  flag  other  than  that  of  the  ship's 
nationality  may  be  used  for  purposes  of  pursuit  or  escape ;  all 
acts  of  hostility,  however,  must  take  place  under  the  proper 
national  flag  ;  the  rule  being  that  a  vessel  cannot  attack  an- 
other, at  sea,  before  having  made  known  its  own  nationality, 
and  having  put  the  vessel  which  it  encounters  in  a  position  to 
declare  its  nationality  also.' 

The  Public  and  Private  Property  of  the  Enemy 

Treatment  of  Property  on  Land.  The  property  of  an  en- 
emy on  land  may  be  classified  into  public  2ind  private.  Public 
property  is  again  classified  into — i.  Property  of  a  military 
character,  or  susceptible  of  appropriation  to  military  use.  To 
this  class  belong  forts,  arsenals,  dockyards,  magazines,  and 
military  stores  of  all  kinds.  2.  Money  and  movables  of  all 
kinds  belonging  to  the  belligerent  government  as  proprietor. 
3.  Property  essentially  civil,  or  non-military  in  character,  and 
used  for  religious,  charitable,  scientific,  or  educational  pur- 
poses. The  two  former  may  be  captured  and  destroyed,  or 
converted  to  the  military  use  of  the  enemy.  The  latter  is  now 
exempt  from  seizure,  and  should  be  protected  by  a  belligerent 
if  situated  in,  or  near,  the  theatre  of  active  operations.^ 

'  Pistoye  at  Duverdy,  Traite  des  eign  flag  to  deceive  an  enemy  is 
Prises,  tit.  i.  chap.  i.  The  ancient  permissible,  but  it  must  be  hauled 
rule  of  maritime  law  was  that  the  down  before  a  gun  is  fired  ;  and 
affirming  gun  could  only  be  fired  under  no  circumstances  shall  an  of- 
underthe  true  national  flag. — Valin,  ficer  commence  an  action,  or  fight 
Traite  des  Prises,  chap.  ii.  §  i,  par.  a  battle,  without  the  display  of  the 
9;  cited  by  Halleck,  vol.  ii.  pp.  25,  national  ensign." 
29.  Ortolan  says  that  the  affirm-  "  Hall,  pp.  416-423  ;  II  Halleck, 
ing  gun  may  be  fired  under  false  pp.  98-106;  Boyd's  Wheaton,  §§ 
colors,  but  that  all  acts  of  hostility  352,  355;  Risley,  pp.  134,  137-139; 
must  take  place  under  the  proper  Walker,  Manual,  pp.  128-130,  143- 
national  flag. — II  Ortolan,  liv.  iii.  145;  Manning,  pp.  179-183;  Snow, 
chap.  i.  See  also  Masse,  Droit  pp.  108,  109;  Woolsey,  §  137;  In- 
Commercial,  tome  i.  §  307 ;  Haute-  structions  for  Government  of  Ar- 
feuille.  Droit  des  Nations  Neutres,  mies  of  the  U.  S.  etc.  sec.  ii. ;  II 
tome  iv.  p.  8;  Snow,  p.  96.  Para-  Twiss,  pp.  1 19-125;  Vattel,  liv.  iii. 
graph  273  United  States  Navy  chap.  ix.  §§  160-163 :  Creasy,  pp. 
Regulations  of  1896  contains  the  496-514;  Dana's  Wheaton,  §  347 
requirement  that  "  the  use  of  a  for-  (note),  169  ;  IV  Calvo,  §§  2199-2220. 


THE    LAW   OF   WAR  307 

Private  property  is  classified  into  real  and  personal.  Real 
property,  whether  consisting  of  land  or  buildings,  is  exempt 
from  seizure  or  destruction,  except  as  a  direct  necessity  of 
military  operations.  It  may  be  occupied  or  used,  and  during 
such  occupation  should  be  protected  from  all  needless  injury 
and  damage.  Personal  property  is  divided  into  —  i.  That 
which  is  susceptible  of  direct  military  use  by  a  belligerent. 
To  this  class  belong  pack,  saddle,  and  draft  animals,  means  of 
transportation  of  all  kinds,  cattle,  fuel,  provisions  and  food 
products,  medicines,  forage,  cloth,  leather,  and  shoes  and  the 
like  in  general,  all  articles  of  wear  and  supply  for  men  and  ani- 
mals. 2.  That  which  is  not  susceptibb  of  direct  military  use, 
including  works  of  art,  furniture,  valuables,  clothing,  and  arti- 
cles of  general  merchandise.  The  former  may  be  captured,  or 
taken  by  way  of  requisition  ;  the  latter  is  exempt  from  capture 
or  confiscation.  Money  may  be  taken  in  commutation  of  req- 
uisitions regularly  imposed,  or  by  a  levy  in  the  nature  of  a 
contribution,  with  the  sanction  of  the  state  by  whose  authority 
it  is  levied.  If  personal  property  be  taken  by  way  of  pillage, 
the  act  is  severely  punished. 

The  taking  of  private  property  within  the  limits  here  de- 
scribed is  sanctioned  by  the  law  of  nations.  It  is  sometimes 
paid  for,  more  frequently,  perhaps,  now  than  formerly,  but 
when  compensation  is  made,  it  is  dictated  rather  by  motives 
of  policy  than  justice.  Illiberal  and  unjust  as  the  practice  may 
be,  i*"  is  universally  recognized,  and  so  receives  the  unwilling 
sanction  of  international  law.'  The  army  regulations  of  all 
nations  provide  specifically,  and  in  great  detail,  for  the  main- 

'  Boyd's  Wheaton,  §§  346,  346a;  to  make  good  his  claim  as  against 

II  Halleck.pp.  108-115;  Vattel,  liv.  the  capture  in  the  appropriate  tri- 

iii.  chap.  ix.  §§  161-168;   Manning,  bunal  established  for  that  purpose. 

pp.  179-183;  II  Twiss,  pp.  1 19-128;  In  that  regard  they  occupy  on  land 

Creasy  pp.  514-534;  Hall,  §139;  Ris-  the  same  position  that  naval  forces 

ley,  pp.  134, 135,139-143.    What  shall  do  at  sea. — Lamar  vs.  Browne,  92 

be  the  subject  of  capture,  as  against  U.  S.  1 57.    Unless  restrained  by  gov- 

an  enemy,  is  always  within  the  con-  ernmental  relations,  the  capture  of 

trol  of  every  belligerent.     It  is  the  movable  property  on  land  changes 

dutyofhismilitaryforcesin  the  field  the  ownership  of  it  without  adjudi- 

toseizeand  holdthatwhichisappar-  cation. — Ibid.  See  also  Arts.  46-51 

ently  so  subject,  leaving  the  owner  of  the  Hague  Conference  of  1899. 


308  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

tenance  of  their  troops  in  the  enemy's  territory,  by  supporting 
them,  wholly  or  in  part,  by  requisitions  on  the  country  through 
which  they  are  passing,  and  prescribe  the  methods  of  quarter- 
ing troops,  and  of  collecting  and  distributing  subsistence  and 
forage.' 

Requisitions  are  the  formal  and  regular  levies  of  supplies, 
made  by  an  invading  army  for  its  support,  in  accordance  with 
the  municipal  laws  and  army  regulations  of  the  state  to  which 
it  belongs.  These  laws,  regulations,  and  orders  prescribe  the 
methods  in  accordance  with  which  the  requisitions  are  to  be 
made.  The  proportion  to  be  taken  from  each  individual,  the 
articles  to  be  paid  for,  if  there  be  any  such,  the  tariffs,  or  rates 
of  payment,  and  the  cases  in  which  receipts  are  to  be  given, 
are  stated  in  such  regulations  and  orders.  They  also  contain 
provisions  denouncing  pillage,  and  prescribing  punishments 
for  that  offence  and  for  other  unauthorized  taking  of  enemy 
property.* 

Receipts  should  always  be  given  for  property  taken  by  way 
of  requisition.  They  are  of  importance,  as  payments  for  stores 
and  supplies  thus  taken  from  individual  residents  of  the  occu- 
pied territory,  whether  made  by  the  invaders'  government  or 
their  own,  are  based  upon  them  ;  and,  if  not  taken  up  and 
paid,  they  may  serve  to  mitigate  the  severity  of  future  req- 
uisitions by  the  same  invader.  Requisitions  may  be  made 
by  commanding  officers  of  any  grade,  but  always  in  strict 
accordance  with  law  and  regulations.  Unauthorized  requisi- 
tions are  usually  regarded  as  acts  of  pillage,  and  are  punished 
accordingly/ 

A  question  arises  as  to  whether  a  belligerent  can  compel 
the  personal  services  of  individuals  of  the  population  of  the 

'Hall,  §139;  Risley,  pp.  139-140;  pp.   182,  183;  Vattel,  liv.  i.  ch.  ix.  § 

Walker,  Manual,  pp.  143-148 -.Wool-  165;  Articles  56-58  Brussels  Con- 

sey,§§  135-137;  Snow,  pp.  108-109;  ference;    Arts.  48-53  Convention 

II  Halleck,  pp.  108-109;  U.  S.  In-  of  The  Hague,  1899. 

structions,  par.  33;    II  Twiss,  pp.  MI  Halleck,  pp.  113,  114  ;  Article 

122-128;  IV  Calvo,§§  2220-2229.  51     Convention    of    The     Hague, 

"Hall,  §140;  Risley,  pp.  140-141  ;  1899;    Hall,  §    139;    IV  Calvo,   §§ 

Woolsey,'§  136  ;  Snow,  pp.  108-109  :  2253-2255  ;  Bluntschli,  §§  653-656. 
II  Halleck,  pp.  109-114  ;  Manning, 


THE   LAW   OF   WAR  309 

invaded  territory.  Such  services  may  be  voluntary,  either  on 
the  part  of  individuals  or  corporations,  and,  if  so,  are  paid  for 
in  accordance  with  the  agreement  in  each  case.  With  these  in- 
ternational law  has  nothing  to  do.  The  right  of  a  belligerent 
to  take  mean's  of  transportation,  by  way  of  requisition,  has  al- 
ways been  asserted,  and  almost  invariably  acted  upon.  This 
involves  the  right  to  compel  the  services  of  drivers  and  teams, 
and  also  of  railway,  steamship,  and  telegraph  companies,  and 
of  blacksmiths,  carpenters,  and  other  tradesmen.  These  ser- 
vices must  be  obtained  by  force,  as  the  duty  of  a  citizen  to  his 
own  government  forbids  him  to  render  voluntary  service  to  the 
enemy.  The  question  of  payment  is  discretionary  with  the 
belligerent  employer,  and,  as  in  the  case  of  other  requisitions, 
is  rather  a  matter  of  policy,  or  expediency,  than  of  strict  jus- 
tice.' 

The  policy  of  the  United  States  in  the  matter  of  requisi- 
tions has  been  far  from  liberal.  At  the  beginning  of  the  cam- 
paign in  Southern  Mexico,  General  Scott  was  directed  to  sub- 
sist his  troops  in  the  enemy's  country.  Upon  the  urgent  re- 
monstrances of  that  officer  as  to  the  injustice  and  impolicy  of 
such  a  course,  the  order  was  rescinded,  and  the  regulation  of 
the  matter  left  to  the  discretion  of  the  general  commanding 
in  the  field.  He  thereupon  directed  reasonable  prices  to  be 
paid  for  such  articles  as  were  needed  for  the  subsistence  of  his 
army,  and  experienced  so  little  difficulty  in  obtaining  them  as 
to  make  a  resort  to  requisitions  unnecessary.  During  the  war 
of  the  rebellion  generals  in  the  field  were  authorized  to  seize 
such  articles  of  subsistence,  or  forage,  as  were  needed  by  their 
commands.  For  the  property  thus  taken  receipts  were  to  be 
given,  payable  at  the  end  of  the  war,  upon  proof  of  loyalty. 

'  Hall,  pp.  425-427.     In  January,  ing,  at  the  time  indicated,  a  certain 

1 87 1,  the  Germans,  who  were  then  number   of  the   officers   and    em- 

in  military  occupation  of   Nancy,  ployes  would   be  seized  and  shot; 

required  the  services  of  five  hun-  — Hall,  p.  427, note;  H  Halleck.pp. 

dred  laborers  upon  a  work  of  re-  i  lo-i  13,  notes;  Creasy,  pp.  534-535  ; 

pairing  the   railway — of  consider-  vol.  xx.  Revue  de  Droit  Int.  pp.  362, 

able  importance  to  the  success  of  383;  xix.  Ibid. p.  164;  Lawrence,  Int. 

their  operations.     Notice  was  giv-  Law,  §§  203,204;  II  Guelle,  pp.  176- 

en  that  if  they  were  not  forthcom-  231 ;  IV  Calvo,  §§  2242-2244. 


310      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

If  such  proof  were  not  produced,  no  payments  were  to  be 
made.  This  amounted,  in  fact,  to  the  taking  of  enemy's 
property  without  compensation,' 

Contributions.  Contributions  are  levies  of  money  or  sup- 
plies, made  by  the  authority  of  a  belligerent  government, 
through  the  commander-in-chief  of  its  armies  in  the  field. 
They  are  levied  upon  the  property,  or  taxable  resources,  of  a 
city  or  district  of  territory.  They  are  usually  assessed,  collect- 
ed, and  paid  by  the  local  authorities,  upon  the  formal  demand 
of  the  invading  general.  If  the  amount  of  the  contribution 
be  not  paid,  or  delivered,  at  the  specified  time,  the  invader 
takes  such  measures  as  he  may  deem  necessary  to  enforce  his 
decree.  Unlike  requisitions  they  are  never  refunded,  or  reim- 
bursed, by  the  belligerent  who  levies  them,  though  they  may 
be  deducted  from  the  amount  of  an  indemnity  proposed  to  be 
levied  by  a  conquering  invader  in  the  preparation  of  the 
treaty  of  peace.'' 

Captured  Property  on  Land;  Booty.  Public  property  on 
land,  and  in  some  instances  private  property  also,  may  be 
captured  by  a  belligerent.  Such  captured  property  is  called 
booty.  It  consists  of  all  public  property  that  is  susceptible  of 
capture  in  war,  and  of  such  private  property  as  is  susceptible 
of  direct  military  use.  In  strictness  all  articles  that  may  be 
obtained  by  way  of  requisition  fall  under  the  head  of  booty. 
Aside  from  the  articles  obtained  by  requisition,  booty  may 
consist  of  arms,  ammunition,  provisions,  and  military  supplies 
of  all  kinds,  and  of  all  public  and  private  property  captured  in 
battle,  or  as  a  direct  result  of  military  operations.' 

'  Snow,  p.  109;  II  Halleck.pp.  iii,  ^  For  the  latest  authoritative  dis- 

113;   IV  Calvo,  §§  2242-2255;  VII  cussion  of  this  subject,  see  the  arti- 

Pradier-Fodere,  §§  3020-3062.  cle,  "  The  Right  of  Booty  in  Gen- 

^  Hall,   pp.  433-435 ;  Risley,   pp.  eral,  and   especially  the   Right  of 

140,    141;  Woolsey,  §    136;  Snow,  Maritime    Capture,"   by   Professor 

pp.   108,  109;  II  Halleck,  pp.  109-  Bluntschli,  in  the  Revue  de  Droit 

114;  VII  Pradier-Fodere,  §§  3062-  Int.  vol.  ix.  (1877),  p.  508;  x.  Ibid.  p. 

3065;  II  Twiss,  pp.  124,  125;  Law-  60;  see  also  II  Twiss,  p.  122  ;  Hall,§ 

rence,  Int.  Law,  §  204;    IV  Calvo,  435;  Risley,  p.  141  ;  II  Halleck,  pp. 

§§2231-2284;   Kliiber,  §  251  ;  Heff-  1 1 5-1 18  ;  Lawrence,  Int.  Law,  §  199. 

ter,  §  130;    Vattel,  liv.  iii.  chap.  ix.  What  shall  be  the  subject  of  capt- 

§  165  ;  Walker,  Manual,  p.  145.  ure,  as  against  the  enemy,  is  always 


THE   LAW   OF    WAR  3 1  I 

As  is  the  case  with  all  property  which  may  be  captured  in 
war,  on  land  or  sea,  the  title  first  vests  in  the  captor's  govern- 
ment.* Such  title  is  held  to  be  complete  after  twenty-four 
hours  of  actual  possession,  upon  the  presumption  that  secure 
possession  will  be  obtained  within  that  time.  The  capturing 
government  may  make  such  disposition  of  this  captured  prop- 
erty as  it  deems  best.  It  may  convert  it  to  its  own  use ;  it 
may  cause  it  to  be  sold,  and  may  appropriate  the  proceeds  of 
the  sale  to  governmental  uses ;  or  it  may  decree  the  whole,  or 
a  part,  to  the  actual  captors  as  a  reward  for  their  services. 
The  British  Government,  in  certain  cases,  recognizes  and  re- 
wards such  services.  The  Government  of  the  United  States 
has  adopted  the  contrary  rule,  and  appropriates  to  its  own 
use  all  property  captured  by  its  armies  on  land. 

The  rules  regarding  booty  and  those  regarding  the  treat- 
ment of  private  property  seem  to  be  in  conflict.  They  are 
not  so  in  fact.  Private  property  on  land,  however  great  in 
amount,  is  exempt  from  capture  unless  it  be  susceptible  of 
direct  military  use  by  a  belligerent,  or  contributes  directly  to 
the  support  and  maintenance  of  his  armies.  Arms,  ammuni- 
tion, equipments,  and  all  sorts  of  military  stores,  clothing,  or 
cloth  suitable  for  uniforms,  shoes,  leather,  blankets,  medicines, 
and  food  and  forage  supplies  of  all  kinds,  are  susceptible  of 
such  appropriation.  Money,  unless  by  way  of  contribution, 
clothing  and  cloth  not  adapted  for  use  as  uniforms,  and  all 
other  products,  manufactures,  and  commodities,  are  exempt 
from  capture,  and  are  entitled  to  protection  by  the  laws 
of  war.'' 

within  the  control  of  every  bellig-  '  Unless  restrained  by  govern- 
erent.  It  is  the  duty  of  his  mili-  mental  relations,  the  capture  of 
tary  forces  in  the  field  to  seize  and  movable  property  on  land  changes 
hold  that  which  is  apparently  so  the  ownership  of  it  without  ad- 
subject,  leaving  the  owner  to  make  judication.  —  Lamar  7^s.  Browne, 
good  his  claim  as  against  the  capt-  92  United  States,  187;  Young  vs. 
ure  in  the  appropriate  tribunal  es-  United  States,  97;  Ibid.  39,  60. 
tablished  for  that  purpose.  In  that  ^  "  The  very  ground  on  which  a 
regard  they  occupy  on  land  the  belligerent  army  must  encamp  is 
same  position  that  naval  forces  do  private  property ;  the  crops  which 
at  sea.  —  Lamar  vs.  Browne,  92  it  must  trample  under  foot  in  its 
United  States,  187.  march   are  private   property;   the 


312  THE  ELEMENTS   OF   INTERNATIONAL   LAW 

Combatants  and  Non-combatants.  While  the  entire  body 
of  citizens  or  subjects  of  the  beUigerent  states  become  enemies 
at  the  outbreak  of  war,  it  has  been  seen  that  this  status  of 
hostihty  is  legal,  rather  than  actual ;  and  that  no  individual 
subject  of  either  state  can  take  an  active  part  in  military  opera- 
tions, or  commit  acts  of  hostility,  save  with  the  express  con- 
sent of  his  government,  as  expressed  by  its  taking  such  citizen 
into  its  military  service,  either  by  appointment  to  military 
ofifice,  or  by  enlistment,  or  conscription,  or  by  a  rising  in  mass. 
Persons  thus  expressly  authorized,  and  no  others,  may  do  acts 
of  hostility,  or  otherwise  participate  actively  in  the  operations 
of  war. 

A  combatant  is  a  person  who,  with  the  special  authorization 
of  his  government,  takes  part,  either  directly  or  indirectly,  in 
the  operations  of  war.  The  term  includes,  in  addition  to  the 
troops  of  the  line,  all  staff  -  officers,  surgeons  and  chaplains, 
officers  and  employes  of  the  supply  and  transport  service,  all 
agents,  contractors,  and  others  who  accompany  the  army  in  an 
ofificial  capacity,  and  who  assist  in  its  movement,  equipment, 
or  maintenance;  and  all  retainers  to  the  camp.' 

A  non-combatant  is  a  resident  of  a  belligerent  state  who 
takes  no  part  in  the  war.  He  is  not  subject  to  the  laws  of 
war,  and  is  protected  by  them,  in  his  person  and  property,  so 
long  as  he  refrains  from  participation  in  military  operations." 

Treatment  of  Non-combatants  in  the  Theatre  of  War.    It 


farm    buildings    and   the   villages  cessity  of  the  case,  as  the  destruc- 

which  it  must  devastate  and  de-  tion  of  public  property;  to  seize  it 

stroy  in  battle  are  private  property,  by  way  of  requisitions,  to  the  ex- 

The  vicissitudes  of  war  also  must  tent  to  which  such  requisitions  are 

sometimes  render  the  exaction  of  necessary  for  the  support  of  a  bel- 

supplies  for  the  support  of  an  army  ligerent  army,  is  justifiable  on  the 

moving  in  an  enemy's  country  im-  same  principle  as  the  war  itself  on 

perative.evenin  thecaseofwell-dis-  which  the  army  is  engaged." — \\ 

ciplined  troops.  Respect,  therefore,  Twiss,  int.  chap.  pp.  40,  41. 
for  private  property  in  a  continental         '  II  Halleck,  pp.  2-22  ;  Snow,  pp. 

war  must  always  be  a  question  of  89,90;  Hall,  pp.  394,  395';  Risley,  pp. 

degree.     To  destroy  private  prop-  107-1 14  ;  IV  Calvo,  §§  2044-2065. 
erty,  where  such  destruction  is  nee-         -  Hall,  pp.  395,  396;  II  Halleck, 

essary  to  facilitate  the  operations  of  pp.  68-73;  Snow,  pp.  89, 90;  Risley, 

war,  is  as  justifiable,  from  the  ne-  pp.  107,  108. 


THE   LAW  OF  WAR  313 

has  been  seen  that  the  subjects  of  two  belh"gerent  states  be- 
come enemies  at  the  outbreak  or  declaration  of  war.  They 
continue  in  this  hostile  relation  during  its  continuance.  This 
status  does  not  authorize  them  to  commit  acts  of  hostility, 
however,  which  can  only  be  undertaken  by  persons  having  the 
express  authorization  of  the  belligerent  governments.  The 
rest  of  the  population  of  a  belligerent  territory  are  not  only 
forbidden  to  take  an  active  part  in  military  operations,  but  are 
entitled  to  personal  immunity  and  protection  so  long  as  they 
refrain,  in  good  faith,  from  taking  part  in  the  war.  A  portion 
of  their  property  may  be  taken,  with  or  without  compensa- 
tion, their  houses  and  lands  may  be  occupied,  and  injured,  or 
possibly  destroyed,  as  a  matter  of  military  necessity;  but  their 
persons,  and  such  of  their  property  as  is  not  confiscable  by  the 
laws  of  war,  are,  by  the  same  laws,  completely  protected.  Any 
offence  committed  against  them,  or  their  property,  is  an  of- 
fence against  the  laws  of  war,  and  is  promptly  and  severely 
punished.  This  exemption  from  the  operations  of  war  they 
continue  to  enjoy  so  long  as  they  take  no  active  part  in  hos- 
tile operations.  If,  on  the  other  hand,  they  take  an  active 
part  in  military  operations,  with  the  authority  of  their  gov- 
ernment, they  become  a  part  of  its  military  force,  and  are 
treated  accordingly.  If  they  act  without  such  authorization, 
and  in  violation  of  the  usages  of  war,  they  are  no  longer  pro- 
tected, but  are  punished  according  to  the  nature  and  degree 
of  their  offence.' 

Prisoners  of  "War.  A  prisoner  of  ivar  is  a  combatant  who, 
by  capture  or  surrender,  falls  into  the  hands  of  an  enemy.  In 
strictness  an  enemy  has  the  right  to  make  prisoners  of  those 
persons  only  whom  he  may  lawfully  kill  in  war.  In  practice, 
however,  the  former  class  is  much  more  numerous  than  the 
latter.  This  is  because  the  right  of  making  prisoners,  as  now 
exercised,  inflicts  no  particular  hardship  upon  the  captured 
person  ;  while  his  detention,  as  a  prisoner,  may  serve  to  ma- 


'  Woolsey,  §  135  ;  Risley,  pp.  T07-     for  United  States  Armies,  etc.  pars. 
108 ;  Hall,  pp.  397-398 ;  Instructions     20-23  !  VII  Pradier-Fodere,  §  3019, 


314  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

terially  injure  the  enemy,  by  impeding  him  in  his  military  op- 
erations, or  by  interfering  with  the  efficient  administration  of 
his  government.  For  this  reason  "  he  may  capture  all  persons 
who  are  separated  from  the  mass  of  non-combatants  by  their 
importance  to  the  enemy's  state,  or  by  their  usefulness  to  him 
in  his  war.  Under  the  first  of  these  heads  fall  the  sovereign 
and  the  members  of  his  family  when  non-combatants,  the 
ministers  and  high  officers  of  the  government,  diplomatic 
agents,  and  any  one  who,  for  special  reasons,  may  be  of  im- 
portance at  a  particular  moment."  ' 

Treatment  of  Prisoners.  So  soon  as  an  individual  of  the 
enemy  ceases  his  armed  resistance  he  becomes  vested  with  all 
the  rights  of  a  prisoner  of  war.  The  right  to  injure  him  is,  at 
that  instant,  changed  into  the  duty  of  protecting  him,  and  of 
preventing  his  escape.  The  public  property,  arms,  equipments, 
and  any  articles  susceptible  of  military  use,  found  in  the  pos- 
session of  a  prisoner  at  the  time  of  his  capture,  become  the 
property  of  the  capturing  state.  His  private  property  is 
respected,  and  secured  to  him,  by  the  usages  of  war.  Were 
it  not  so  protected  every  consideration  of  honor  and  humanity 
should  deter  his  captor  from  any  act  of  aggression  towards 
one  who,  from  his  situation,  is  unable  to  defend  himself." 

Prisoners  are  usually  sent  to  the  captor's  state,  or  are  re- 
moved to  points  at  a  distance  from  the  actual  theatre  of  war, 
where  they  can  be  securely  held.  They  are  fed  and  clothed 
at  the  expense  of  the  captor's  government.  They  are  entitled, 
in  addition  to  proper  food  and  clothing,  to  medical  attend- 

'  II  Halleck,  pp.  73-75  ;  Hall,  pp.  State.— VII  Opinions  of  Attorney- 

403-406;  Risley,  p.  129;  Snow,  pp.  General,  p.  122.     But  if  such  pris- 

90-91  ;  Woolsey,  §  134;    IV  Calvo,  oner  of  war  be  taken  on  shore,  he 

§§  2133,2134;  I  Guelle,  pp.  187-196.  becomes  subject  to  the  local  juris- 

"  Snow,  pp.  98-99  ;  Boyd's  Whea-  diction  or  not,  according  as  it  may 

ton,  §  343;  II  Halleck,  pp.  74-75;  be   agreed    between    the   political 

Risley,  p.  130;  Hall,  pp.  405-407.  authorities  of  the  belligerent  and 

A  prisoner  of  war  on  board  a  for-  neutral  power.— Ibid.      See  also  I 

eign  man-of-war,  or  of  her  prize,  Guelle,  pp.  196-202;    IV  Calvo,  §§ 

ciinnotbere\easedby /ladeas  corpus  2 134-2 146;    Articles    5-9   Conven- 

issuing  from  courts  either  of  the  tion  of  the  Hague,  1899;  VII  Pra- 

United   States  or  of   a   particular  dier-Fodere,  §§  2746-2805. 


THE   LAW   OF   WAR  315 

ance,  and  to  a  reasonable  allowance  of  fuel,  quarters,  bedding, 
and  camp  equipage.  They  are  subject  to  such  measures  of 
restraint  as  are  necessary  to  their  safe-keeping ;  and  are  held 
to  the  observance  of  such  sanitary  and  police  regulations  as 
are  made  necessary  by  their  confinement.  The  rules  of  war 
authorize  a  belligerent  to  require  them  to  perform  a  certain 
amount  of  labor,  as  a  reimbursement  of  the  cost  of  their  sup- 
port. No  labor  may  be  required  of  them,  however,  that  is 
calculated  to  assist  the  captor,  directly,  in  his  military  opera- 
tions. In  recent  times  the  practice  has  been  to  require  no 
services  of  prisoners  of  war  except  such  as  have  contributed 
directly  to  their  comfort  and  welfare.' 

Prisoners  of  war  are  not  guilty  of  a  crime  in  having  de- 
fended their  country.  Their  confinement,  therefore,  cannot 
assume  a  penal  character,  but  must  consist  in  such  measures 
of  detention  as  will  secure  them  against  danger  of  escape.  A 
prisoner  of  war,  in  attempting  to  escape,  does  not  commit  a 
crime.  It  is  his  duty  to  escape  if  a  favorable  opportunity  pre- 
sents itself.  It  is  equally  the  duty  of  his  captor  to  prevent  his 
escape,  and  he  is  justified  in  resorting  to  any  measures,  not 
punitive  in  character,  that  will  best  secure  that  end.  A  pris- 
oner of  war  may  be  killed  in  attempting  to  escape.  If  recapt- 
ured his  confinement  may  be  made  more  rigorous  than  before."* 

According  to  the  present  rule  of  international  law  the 
status  of  a  prisoner  of  war  may  be  terminated — i.  By  ex- 
change ;  2.  By  ransom  ;  3.  By  the  treaty  of  peace  at  the  end 
of  the  war;  4.  By  a  successful  escape ;  5.  By  death  either  in 
camp  or  detention  or  when  released  on  parole. 

Internment  of  Prisoners  in  Neutral  Territory.  Com- 
batants who  take  refuge  in  neutral  territory,  to  escape  capture 
at  the  hands  of  the  opposing  belligerent,  occupy,  in  some  re- 
spects, the  status  of  prisoners  of  war.  At  the  instant  of  en- 
trance to  such  territory,  and  as  a  necessary  consequence  of 

'  IGuelle.pp.  200-202;  Ha]l,§  132;  ^  I  Quelle, pp.  202-204;  Hall,§  132; 

IV  Calvo,  §§  2147,  2148;  Article  6  Risley.p.  13  i;  IVCalvo,§  2150;  Ar- 

Conventionofthe Hague,  1899;  VII  tide  8  Convention  of  the  Hague, 

Pradier-Fodere,  §§  2805,  28o<5.  1899;  VII  Pradier-Fodere,§  2822. 


3l6  THE   ELEMENTS    OF   INTERNATIONAL    LAW 

their  admission,  they  become  subject  to  the  jurisdiction  of 
the  neutral  state  whose  hospitality  they  have  thus  invoked. 
They  are  interned  by  that  government,  at  such  places  as  it 
sees  fit  to  designate,  and  are  subjected  to  such  measures  of 
restraint  as  it  may  deem  necessary  to  the  maintenance  of  its 
neutral  obligations.  They  are  supported,  while  so  interned, 
by  the  neutral  government,  and  the  cost  of  their  maintenance 
is  subsequently  reimbursed  by  the  government  of  the  state  of 
whose  military  establishment  the  interned  troops  form  a  part.' 
Exchange  of  Prisoners.  The  exchange  of  prisoners  be- 
tween belligerents  is  made  in  accordance  with  agreements,  en- 
tered into  for  that  purpose,  called  cartels.  The  making  of 
such  agreements  is  purely  voluntary,  and  cannot  be  con- 
strained by  subjecting  prisoners  to  special  hardships.  The 
time,  place,  and  method  of  exchange  are  fully  detailed  in  the 
cartels,  the  provisions  of  which  are  always  strictly  construed. 
The  basis  of  exchange  is  usually  that  of  strict  equivalents, 
man  for  man,  rank  for  rank,  disability  for  disability.  The  ex- 
changeable values  of  the  different  grades  of  officers  and  non- 
commissioned ofificers  are  established,  and  expressed  in  terms 
of  private  soldiers.  Numbers  are  then  computed  for  exchange 
upon  the  basis  thus  agreed  upon.  An  excess  on  either  side 
may  constitute  a  credit,  or  may  be  extinguished  by  a  payment 
of  money.  Prisoners  of  war  who  escape  from  confinement, 
or  who  are  exchanged,  are  by  such  acts  revested  with  all  the 
rights  of  belligerents.  The  binding  force  of  cartels,  like  that 
of  all  other  agreements  between  belligerents,  rests  upon  the 
good  faith  of  the  contracting  parties.  If  the  terms  of  a  car- 
tel are  violated  by  one  belligerent  they  cease  to  be  obligatory 
upon  the  other.° 

'  After  the  battle  of  Sedan,  in  oners  in  neutral  territory  is  regu- 

1870,     considerable     numbers     of  lated  by  the  provisions  of  Articles 

French  troops  took  refuge  in  Bel-  57-60   of  the   Convention    of   the 

gian  territory,  where  they  were  in-  Hague  of  1899. 

terned  and  supported  by  the  Bel-  '•'Hall,  pp.  411-413;  H   Halleck, 

gian  Government.    As  between  the  pp- 75-78  ;  Risley,  pp.  130,  131  ;   HI 

signatory    parties   to    that    instru-  Phillimore,  pp.  163,   164,  181-184; 

ment,  the  subject  of  the  internment  Snow,  pp.  98,  99;  Woolsey,  §  134; 

of  wounded  and  unwounded  pris-  Boyd's  Wheaton,  §§  344,  344a;  Vat- 


THE    LAW   OF   WAR  317 

Cartel  Ships.  The  use  of  what  are  known  as  "cartel 
ships"  in  the  conveyance  of  prisoners  of  war  from  one  bel- 
ligerent port  to  another  for  purposes  of  exchange,  in  pur- 
suance of  cartels  to  that  effect,  is  of  relatively  frequent  occur- 
rence, and  is  fully  sanctioned  by  international  law.  Cartel 
ships,  while  so  employed,  are  exempt  from  capture  by  cruisers 
of  the  other  belligerent,  provided  that  no  contraband  articles 
are  attempted  to  be  conveyed  as  part  of  their  cargo,  and  the 
terms  of  the  cartel  are  otherwise  carried  out  in  good  faith.' 

Ransom.  The  release  of  prisoners  of  war  in  consideration 
of  a  payment  of  money  called  ransom,  was  a  consequence  of 
the  ancient  rule  by  which  a  person,  captured  in  war,  became 
the  property,  and,  therefore,  the  slave  of  his  captor.  The 
practice  did  not  come  to  an  end,  however,  with  the  extinc- 
tion of  slavery,  but  continued  in  existence  until  relatively 
recent  times,  the  rule  being  that  a  state  was  bound  to  secure 
the  release  of  its  subjects  who  were  held  by  the  enemy  as 
prisoners  of  war.  Such  release  could  be  effected  by  exchange, 
or  by  ransom,  and  bases  of  exchange  and  ransom  were  fixed, 
by  cartel  between  the  belligerents,  at  the  beginning  of  the 
war.  Although  the  practice  has  become  practically  obsolete, 
certainly  so  far  as  civilized  states  are  concerned,  the  circum- 
stances of  future  wars  may  be  such  as  to  warrant  its  recog- 
nition in  the  disposition  of  prisoners  of  war." 

Paroles.  A  parole  is  a  promise,  either  verbal  or  written, 
made  by  an  individual  of  the  enemy,  by  which,  in  considera- 


te!, liv.  iii.  chap.  viii.  §153;  I  Guelle 
pp. 213-215;  IVCalvo,§§2i56,  2157 
VII  Pradier-Fodere,  §§  2831-2842 


mutual  exchange  of  prisoners  of 
war,  and  therefore,  properly  speak- 
ing, it  can  have  place  between  bel- 


li Twiss,  §  178.  ligerentsonly. —  The  Rose  in  Bloom, 
'  The  employment  to  which  the  I  Dodson,  60;  III  Philliniore,  pp. 
privilege  of  cartel  is  allowed  is  of  a  181- 184;  Snow,  p.  98. 
very  particular  nature.  It  is  a  mode  2  Vattel,  liv.  iii.  chap.  viii.  §§  153, 
of  intercourse  between  hostile  na-  154;  Hall,  §  134;  II  Halleck,  pp. 
tions  invented  for  the  purpose  of  75.76;  IITwiss,  §§  I77.  178;  Man- 
alleviating,  in  some  degree,  the  ning,  pp.  212,  217;  Risley,  p.  127; 
calamities  of  war,  by  restoring  to  Dana's  Wheaton,  §344;  III  Philli- 
their  liberty  those  individuals  who  more,  p.  164;  VII  Pradier-Fodere, 
may  happen  to  have  fallen  into  a  §§  2843-2848;  IV  Calvo,  §  2158. 
state  of   captivity.      It  is  for  the 


3l8      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

tion  of  certain  privileges  or  advantages,  he  pledges  his  honor 
to  pursue,  or  refrain  from  pursuing,  a  particular  course  of  con- 
duct. Paroles  are  ordinarily  received  only  from  officers,  and, 
when  necessary,  are  given  by  officers,  for  the  enlisted  men  of 
their  commands.  They  are  accepted  from  enlisted  men  only 
in  exceptional  cases.  Paroles  are  given  by  officers  to  secure 
greater  freedom  of  movement,  or  to  obtain  special  privileges, 
while  held  by  the  enemy  as  prisoners  of  war.  These  may,  or 
may  not,  be  in  writing.  They  are  also  given  to  obtain  a  release 
from  captivity,  with  permission  to  return  home.  Such  paroles 
are  accompanied  by  a  pledge  to  refrain  from  taking  part  in 
an  existing  war  until  regularly  exchanged.  They  are  given  in 
writing,  usually  in  duplicate,  one  copy  being  retained  by  the 
captor,  the  other  by  the  officer  giving  the  parole.  These 
instruments  are  obligatory  upon  the  government  of  the  state 
to  which  the  individual  belongs  only  when  accepted,  or  recog- 
nized, by  its  authority.  That  government  may  refuse  to  per- 
mit its  officers  to  give  their  paroles,  when  held  as  prisoners  of 
war,  and  may  refuse  to  recognize  them  when  given.  In  such 
an  event,  however,  it  is  the  duty  of  the  paroled  officer  to  return 
at  once  to  captivity.  As  legal  instruments  paroles  lose  their 
binding  force — i.  Upon  the  formal  exchange  of  the  paroled 
officer ;    2.  At  the  termination  of  the  war. 

A  breach  of  parole  is  an  offence  against  the  laws  of  war.  Its 
enormity  consists  in  the  breach  of  good  faith  that  is  involved 
in  the  commission  of  the  offence.  The  punishment  inflicted 
is  in  proportion  to  the  importance  of  the  parole  given.  The 
extreme  penalty  is  death,  which  may  be  inflicted  upon  a  pa- 
roled prisoner  who  is  captured  in  arms  before  he  has  been 
regularly  exchanged.' 

Crimes  and  Offences  Against  the   Laws  of  War. 

Nature  and  Character.  Certain  acts  done,  or  offences  com- 
mitted, in  the  immediate  theatre  of   military  operations,  dur- 

'  Hall,  pp.  407-411;  II  Halleck,  pp.  204-213;  Vattel,  liv.  iii.  chap, 
pp.  77,  78;  Ri-ley,  p.  131;  Snow,  viii.  §151;  Pradier-Fodere,  §§  2823- 
pp.  98,99;  Woolsey,  §  134;  I  Guelle,     2830;  IV  Calvo,  §§  2151,  2152. 


THE   LAW   OF   WAR  319 

ing  the  continuance  of  hostilities,  are  regarded  by  all  nations 
as  violations  of  the  laws  of  war.  They  are,  in  fact,  crimes  at 
international  law,  and  may  be  punished  by  the  belligerent  who 
suffers  by  their  commission  ;  and  such  an  infliction  of  punish- 
ment, by  one  belligerent,  furnishes  the  other  with  no  ground 
for  complaint  or  retaliation.  Offences  against  the  laws  of 
war  are  triable  by  the  appropriate  military  tribunals  of  the 
belligerent  who  is  injured  by  their  commission  ;  if,  however, 
as  is  sometimes  the  case,  such  tribunals  are  without  jurisdic- 
tion to  try  a  particular  offence,  or  a  particular  offender,  the 
offence  may  be  punished  summarily,  or  the  case  may  be  tried 
by  an  informal  tribunal  convened  for  the  purpose  by  the 
commanding  general.  As  these  offences  derive  their  criminal 
character  from  the  existence  of  war,  and  only  retain  it  during 
its  continuance,  it  follows  that  they  lose  that  quality  at  the 
close  of  the  war,  when  they  cease  to  be  punishable.  It  some- 
times happens,  however,  that,  in  addition  to  being  offences 
under  the  law  of  nations,  they  are  also  offences  against  the 
criminal  law  of  the  place  in  which  they  are  committed,  in 
which  case  they  are  still  triable,  notwithstanding  the  peace, 
by  military  courts  or  by  the  ordinary  civil  tribunals.  For  a 
similar  reason  all  prisoners  held  by  a  belligerent,  for  viola- 
tions of  the  laws  of  war,  are  entitled  to  be  set  at  liberty  at 
the  date  when  the  treaty  of  peace  becomes  operative.  If, 
however,  they  are  undergoing  sentences,  imposed  by  lawful 
m-litary  tribunals,  their  status  is  not  affected  by  the  termina- 
tion of  hostilities.' 

'  II  Halieck,  pp.  452-454;  Instruc  partial.  The  tribunal  before  which 

tions    for  Armies  of   the    United  Major  Andre    was  tried,  at  West 

States,  etc.,  paragraphs  4,  5,  12,  13,  Point  in  1780,  although  described 

44,47;  Hall,  pp.  413,414.     In  the  as  a  court-martial    in   the   order 

military  service  of  the  United  Slates  creating    it,  was,    in  fact,   a  mili- 

such  tribunals  are  known  as  mill-  tary  commission,  as  the  Articles  of 

tary    commissions.     This   tribunal  War  then  in  force  did    not  confer 

was    first    resorted  to  by  General  jurisdiction  upon  courts-martial  for 

Scott,  during  the  war  with  Mexico,  the  trial  of  the  offence  charged  in 

for  the  trial  of  persons  not  subject  Major  Andre's  case — that  of  being 

to  the  Articles  of  War  and  for  the  a  spy.     See  also  IV  Calvo,  §§  2184- 

trial   of    military    persons    for   of-  2192;  VII  Pradier-Fodere,  §§  2973- 

fences  not  triable  by  general  courts-  2988;  III  Dig.  Int.  Law,  §§  354, 355^ 


320  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Military  Jurisdiction.  The  trial  of  persons  charged  with 
crimes  committed  in  violation  of  the  law  of  war,  or  for  offences 
created  by  the  municipal  law  of  a  belligerent,  constitute  an 
exercise  of  military  jurisdiction  ;  that  is,  of  the  power  to  try 
criminal  cases,  to  determine  questions  of  guilt  or  innocence, 
and  to  impose  adequate  sentences. 

Military  jurisdiction  is  of  two  kinds:  first,  that  which  is  con- 
ferred and  defined  by  statute ;  second,  that  which  is  derived 
from  the  laws  or  usages  of  war.  Military  offences  under  the 
statute  law  must  be  tried  in  the  manner  therein  directed  ;  but 
military  offences  which  do  not  come  within  the  statute  are 
tried  and  punished  under  the  common  law  of  war.  The  char- 
acter of  the  courts  which  exercise  these  several  forms  of  ju- 
risdiction depends  upon  the  local  laws  of  each  particular 
country.* 

In  the  armies  of  the  United  States  the  first  is  exercised  by 
courts-martial ;  while  cases  which  do  not  come  within  the 
"  Rules  and  Articles  of  War,"  or  the  jurisdiction  conferred 
by  statute  on  courts-martial,  are  tried  by  military  commis- 
sions." 

If,  therefore,  an  offence  against  the  law  of  a  belligerent  state 
be  committed  by  a  person  belonging  to  its  military  establish- 
ment, or  otherwise  subject  to  its  military  jurisdiction,  such 
offender  is  tried  by  the  appropriate  military  tribunal  of  the 
offended  state ;  if,  on  the  other  hand,  the  offence  is  not 
made  criminal  by  the  law  of  that  state,  or  if  th.e  offender 
is  not  subject  to  its  military  law,  or  if  both  offender  and 
offence  are  without  its  military  jurisdiction,  the  case  is 
usually  referred  by  the  commanding  general  to  an  informal 
tribunal  for  investigation;  if  the  guilt  of  the  offender  is  estab- 
lished to  the  satisfaction  of  such  tribunal,  an  appropriate 
punishment  is  recommended  and,  if  approved,  is  carried  into 

Dana's  Wheaton,  §§  345,  346,  notes  "Instructions  for  the  Government 

167-169.  of  the  Armies  of  the  U.S.  etc.  par. 

'II    Halleck,   pp.   452-455;     II  13.    See  Appendix  A  ;  II  Halleck, 

Guelle,   pp.  20-37;    VII    Pradier-  p.  120;  II  Winthrop,  Military  Law, 

Fodere,  §§  2976-2988;  IV  Calvo,  §§  pp.  18-47,  57-94- 
2166,  2167,  2186-2198. 


THE   LAW   OF   WAR  32I 

effect  by  the  general  commanding- in -chief  in  the  occupied 
territory.' 

Spies.  A  spy  is  a  person  who  enters  the  Hnes  of  an  army 
in  disguise,  or  under  false  pretences,  for  the  purpose  of  secur- 
ing information.  An  individual  who,  in  the  proper  uniform  of 
his  army,  penetrates  within  an  enemy's  lines,  is  not  a  spy,  for 
it  is  the  duty  of  the  enemy  to  maintain  his  line  of  outposts  at 
such  strength  and  efficiency,  in  point  of  numbers,  as  will  make 
it  impossible  for  individuals  to  pass  them.  Concealment  or 
disguise,  and  the  employment  of  false  pretences,  are  essential 
elements  to  the  crime  of  being  a  spy.''  Those  who  undertake 
to  gain  information  of  the  enemy's  movements  by  means  of 
balloons  cannot  be  regarded  as  spies,  for  none  of  the  essential 
conditions  of  the  offence  attend  such  operations.  Spies  are 
employed  at  rates  of  pay  commensurate  to  the  risks  they  un- 
dertake, and  are  presumed  to  be  aware  of  the  penalty  incurred 
in  the  event  of  their  being  captured  by  the  enemy.  Service 
as  a  spy  is  voluntary,  and  cannot  be  compelled.  A  state  can- 
not require  an  individual  in  its  military  service  to  act  as  a  spy. 
If  it  permits  or  authorizes  a  person  in  its  military  or  naval  ser- 
vice to  act  in  that  capacity,  the  fact  of  his  being  in  such  ser- 
vice will  not  screen  him  from  punishment,  should  he  be  appre- 
hended by  the  enemy  ;  nor  will  retaliation  be  justifiable  on  the 
part  of  the  belligerent  who  so  employs  persons  in  his  military 
service. 

For  being  a  spy  the  punishment  is  death.  An  individual 
charged  with  the  crime  cannot  demand  a  trial ;  it  is  granted, 
if  at  all,  by  the  municipal  law  of  the  captor's  state;'  or  in 

'Davis,  Mil.    Law,  pp.  5,  42-60,  schli,  §§  628-631  ;  III  Phillimore,  § 

300-313;  II   Winthrop.   Mil.  Law,  96;  Field,  Int.  Code,  §802  ;  I  Guelle, 

pp.  18-47,  57-94;  III  Dig.  Int.  Law,  pp.   122-126;   IV  Calvo,  §§  2111- 

§354;  VII  Pradier-Fod6re,  §§  2974-  21 14;  VI  Pradier-Fodere,  §§  2765- 

2989.  2768;  Articles  30  and    31  Conven- 

^  II  Halleck.  pp.  30-35  ;  Hall,  pp.  tion  of  The  Hague,  1S99. 

537-539;  II  Ferguson,  §  192;  Ris-  MI    Halleck,  p.  30;    Woolsey,  § 

ley,  pp.    121-124;    Heffter,   §   250;  141;  Snow,  p.  96;  §  1343  Revised 

Kliiber,  §§  266-266C  ;  Vattel,  liv.  iii.  Statutes  (U.  S.) ;  Hall,  pp.  537.  538; 

chap.  X.  §§  179-182;  Grotius,  liv.  iii.  Ill  Phillimore,  §  96;  Art.  21  Brus- 

chap.  iv.  §  18  ;  Snow,  p.  96  ;  Blunt-  sels  Conference.    After  the  retreat 
2X 


322 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


consequence  of  treaty  stipulations  between  the  opposing  bel- 
ligerents.' 

Guerillas.  These  are  persons  who  lurk  in  the  vicinity  of  an 
army,  and  commit  acts  of  hostility  without  the  authorization 
of  their  government,  or  who  carry  on  their  operations  in  vio- 
lation of  the  laws  of  war.  Guerillas  are  not  to  be  confounded 
with  bands  or  organized  parties,  commissioned  by  their  gov- 
ernment and  forming  a  part  of  its  regular  forces,  called  par- 
tisans, whose  operations,  however  annoying  to  an  enemy,  are 
perfectly  lawful  so  long  as  they  are  carried  on  in  accordance 
with  the  laws  of  war.  Guerillas,  however,  are  not  partisans, 
"  their  acts  are  unlawful,  and  when  captured  they  are  not 
treated  as  prisoners  of  war,  but  as  criminals,  subject  to  the 
punishment  due  to  their  crimes.  .  .  .  The  perpetrators  of  such 


of  Washington  from  Long  Island, 
Captain  Nathan  Hale,  an  officer 
of  the  Revolutionary  army,  re- 
crossed  to  that  island  and  entered 
the  British  lines  with  the  express 
purpose  of  obtaining  information 
as  to  the  strength,  movements,  and 
purposes  of  the  enemy.  In  1780 
Major  Andre  became  the  agent  in 
effecting  the  bribery  of  Arnold  with 
a  view  to  induce  that  officer  to  be- 
tray the  post  committed  to  his 
charge.  On  his  return  to  New 
York,  and  while  within  the  Ameri- 
can lines,  Andre  was  captured  by 
the  outposts  of  the  enemy.  In 
both  cases  the  officers  were  capt- 
ured within  the  lines  of  the  enemy 
in  disguise,  with  intent  to  obtain 
information  as  to  his  strength  and 
purposes ;  both  were  condemned 
to  death  and  executed  for  the  same 
violation  of  the  laws  of  war.  These 
cases  illustrate  the  rule  that,  while 
an  officer  or  enlisted  man  may  not 
be  compelled  to  act  as  a  spy,  the 
service  of  either  in  that  capacity  is 
by  no  means  dishonorable.  The 
severe  punishment  imposed  is  jus- 
tified by  the  danger  to  which  bellig- 
erents are  exposed  by  the  opera- 


tions of  spies  and  secret  agents; 
the  service  itself,  though,  as  we 
have  seen,  not  one  upon  which  a 
military  person  may  properly  be 
detailed,  is  honorable  when  under- 
taken by  a  soldier  for  patriotic 
motives,  as  was  especially  the  case 
with  Captain  Hale  ;  it  ceases  to  be 
honorable  only  when  it  is  under- 
taken for  purely  mercenary  mo- 
tives.— II  Halleck,  pp.  32,  33. 

'  Article  30  of  the  Rules  of  War 
on  Land,  adopted  by  the  Peace 
Conference  at  The  Hague,  in  1899, 
contains  the  requirement  that,  in 
wars  to  which  the  signatory  powers 
are  the  belligerent  parties,  persons 
charged  with  acts  of  espionage  shall 
be  tried  by  the  appropriate  military 
tribunals  of  the  captor  state  before 
undergoing  the  infliction  of  the  pun- 
ishment authorized  by  the  laws  of 
war.  Article  31  of  the  same  con- 
vention, provides  that  spies  who 
are  captured,  after  having  success- 
fully returned  to  the  lines  of  the 
army  which  employs  them,  shall 
not  be  liable  to  trial  or  punishment 
for  offences  committed  prior  to  such 
successful  return. 


THE   LAW   OF   WAR  323 

acts,  under  such  circumstances,  are  not  enemies,  legitimately  in 
arms,  who  can  plead  the  laws  of  war  in  their  justification,  they 
are  robbers  and  murderers,  and,  as  such,  may  be  punished."  ' 

Pillaging  consists  in  the  forcible  taking  of  property  in  an 
enemy's  country,  without  authority,  or  in  disobedience  of 
orders.  It  has  been  seen  that  the  laws  of  war  prescribe  a 
method  in  strict  accordance  with  which  certain  kinds  of  prop- 
erty may  be  taken  in  war.  If  it  be  taken  in  any  other  way 
such  taking  constitutes  pillage,  and  is  punishable  accordingly. 
There  can  be  no  higher  test  of  discipline  in  a  command  than 
is  shown  by  the  manner  in  which  the  private  property  of  an 
enemy  is  treated  within  its  sphere  of  operations.  If  such 
property  is  respected,  if  acts  of  pillage  are  strictly  repressed 
and  severely  punished,  the  discipline  is  good.  If  property 
and  life  are  unsafe  in  its  vicinity,  if  irregular  seizures  are  per- 
mitted, if  orchards  and  fields  are  devastated,  discipline  worthy 
of  the  name  cannot  be  said  to  exist. ^ 

The  punishment  of  pillage  varies  with  the  nature  of  the 
offence.     The  extreme  penalty  is  death. 

Crimes  of  Violence.  Certain  crimes  of  violence,  such  as 
murder,  robbery,  mayhem,  rape,  burglary,  assault  and  battery, 
and  assaults  with  intent  to  commit  crime,  when  committed 
by,  or  against,  residents  or  individuals  of  the  invading  army, 
are  punishable  by  military  commissions,  or  other  tribunals  of 
like  jurisdiction.  The  punishment  inflicted  is  usually  more 
severe  than  that  awarded  by  the  law  of  the  place  where  the 
offence  is  committed.  This  course  is  made  necessary  by  the 
fact  that,  in  the  immediate  theatre  of  war,  all  civil  authority 
is  suspended,  the  local  courts  being  prevented,  by  the  fact  of 
war,  from  exercising  their  ordinary  functions.     If  such  crimes 

'  II  Halleck,  p.  7.     General  Hal-  ton,  §  346a;  Kliiber,  §  263;  Snow, 

leek  \nc\u(ies  ^i^ueri7/as  and  pa7'ti-  pp.99, 100;  Article  31  Brussels  Con- 

sans  under  the  same  designation,  ference;  Woolsey,   §  138;    II  Hal- 

In  this  matter  it  is  rather  the  ser-  leek,    pp.    113,    114;    IV  Calvo,  §§ 

vice  in  which  these  persons  are  en-  2223-2225;   Guelle,  pp.   158-164; 

gaged,  than  their  name,  by  which  Bluntschli,  §§  661-663  ;  Articles  23 

their  status  is  regulated.  and  28  Convention  of  The  Hague, 

''Hall, pp. 423,  424;  Boyd's Whea-  1899. 


324      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

were  not  punished  by  the  belligerent  they  would  go  unpun- 
ished, a  most  undesirable  event  from  every  point  of  view. 
Crimes,  at  such  a  time,  are  of  more  frequent  occurrence,  and 
are  usually  of  greater  enormity,  than  during  a  state  of  peace. 
The  ordinary  restraints  of  law  are  removed  or  suspended,  and 
the  criminal  class  soon  asserts  itself  as  it  finds  that  oppor- 
tunity, temptation,  and  apparent  immunity  go  hand  in  hand.' 
The  very  presence  of  a  hostile  force  upon  the  soil  of  a  country 
seems  to  breed  a  special  criminal  class.  This  class  is  recruited 
by  deserters  from  both  armies,  who,  operating  singly  or  in 
small  bands,  commit  depredations  of  all  kinds,  accompanying 
their  criminal  acts  with  the  most  barbarous  atrocities.^  It  is 
to  the  suppression  of  this  kind  of  brigandage  that  every  bel- 
ligerent finds  himself  obliged  to  devote  considerable  time 
and  attention,  and,  not  infrequently,  a  large  amount  of  mili- 
tary force.  No  repressive  measures  are  too  severe  which 
effect  any  reduction  in  this  kind  of  crime.  The  criminals 
themselves  are  outlaws,  beyond  the  protection  of  all  law,  civil 
or  martial,  and  may  be  hunted  down  like  wild  beasts.^ 

Collective  Responsibility  of  Communities  for  Acts  of  In- 
dividuals. Where  offences  against  the  laws  of  war  are  com- 
mitted by  residents  of  a  particular  locality,  under  such  cir- 
cumstances as  to  render  the  detection  of  the  individual 
offenders  difficult  or  impossible,  the  town,  district,'  or  other 
organized  community,  in  which  the  offences  are  being  com- 
mitted, may  be  held  collectively  responsible  for  their  commis- 
sion ;  in  this  way  making  the  community  responsible  for  the 
misdeeds  of  its  individual  members.     To  justify  a  resort  to 

'  Instanceshave  occurred  inwhich  martial,  subject,  however,  to  the  re- 
prisons  and  jails  have  been  emptied  quirement  that  "  the  punishment  in 
upon  the  approach  of  an  invading  any  such  case  shall  not  be  less  than 
army.  the  punishment  provided,  for  the 

'^  Hall,  pp.  413-416  ;  III  Phill.  p.  likeoffence,  by  the  laws  of  the  state, 
156;  Instructions  for  the  Armies  territory,  or  district  in  which  such 
of  the  U.S.  par.  44.  Such  offences,  offence  may  have  been  committed." 
when  committed  in  the  theatre  of  — 58th  Article  of  War,  §  1342  Re- 
operations of  an  army  of  the  United  vised  Statutes  of  the  United  States. 
States,  in  time  of  war,  are,  by  the  ^  Paragraphs 44,  84,  American  In- 
terms  of  the  58th  Article  of  War,  structions  ;  Bluntschli,  §§  641-643  ; 
made  triable  by  a  general   court-  II  Halleck,  pp.  113,  114. 


THE   LAW   OF   WAR  325 

this  procedure,  however,  the  local  authorities  must  be  in  a 
position  to  act,  by  way  of  prevention,  and  the  unlawful  acts 
alleged  to  have  been  committed  must  be  within  the  power  of 
such  authority  to  control,  by  an  exercise  of  reasonable  dili- 
gence, in  respect  to  the  measures  of  prevention  resorted  to 
with  a  view  to  the  prevention  or  repression  of  the  conduct 
complained  of.'  The  methods  resorted  to  in  dealing  with 
such  a  community  will  depend  upon  the  circumstances  of  the 
particular  case.  Privileges  may  be  withheld,  individual  rights 
may  be  suspended,  or  denied,  trade  may  be  curtailed,  or  sub- 
jected to  unusual  impositions,  punitive  damages  may  be  as- 
sessed and  collected,  or  hostages  may  be  taken  as  security  for 
the  good  behavior  of  the  inhabitants  of  the  disturbed  district. 

Retaliation.  In  the  cases  already  described,  the  offence  has 
been  committed  by  an  individual,  or  by  a  number  of  individu- 
als, acting  singly,  or  as  conspirators,  or  joint  offenders  ;  and 
the  observance  of  the  laws  of  war  is  secured  by  the  punish- 
ment of  the  particular  offenders  by  the  reference  of  their  cases 
to  an  appropriate  military  tribunal.  It  happens  not  infre- 
quently, however,  that  the  real  offender  is,  not  the  individual, 
but  the  government  of  the  belligerent  state,  or  the  command- 
ing general  of  its  armies  in  a  particular  theatre  of  military 
operations ;  and  the  offence  consists  in  the  violation  of  a  par- 
ticular rule  of  war  by  the  troops  under  such  general's  com- 
mand, or  in  a  failure  on  his  part  to  conduct  certain  military 
operations  in  accordance  with  the  rules  of  war  as  understood 
and  applied  by  the  general  usage  of  nations.  In  such  cases, 
as  it  is  obviously  impossible  to  apprehend,  try,  and  punish 
either  the  offending  government,  or  its  military  commander 
in  the  field,  they  are  effectively  coerced  into  obedience  to  the 
rules  of  war  by  an  application  of  a  principle,  presently  to  be 
described,  called  retaliation. 

As  the  laws  of  war  are  equally  obligatory  upon  the  belliger- 
ent states  and  their  allies,  and  upon  the  generals  who  control 

'Hall,  pp.  413-415;  II  Halleck,  2989;  Bluntschli,  §  643  bis ;  Law- 
p.  109;  Dana's  Wheaton,  §§  347-  rence,  Int.  Law,  pp.  377,  378  ;  III 
349;  VII  Pradier-Fodere,  §§  2982       F.  De  Martens,  §  119. 


326  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

and  direct  their  military  operations  in  the  field,  it  follows  that 
the  duty  of  observing  those  laws  is  reciprocal,  and  bears  equally 
upon  both  belligerents.  If  either  of  them  violates  a  rule  of 
war,  or  fails  to  conduct  his  operations  in  strict  accordance 
with  the  accepted  usages  of  civilized  warfare,  he  cannot  com- 
plain of  similar  conduct  on  the  part  of  his  enemy;  on  the  con- 
trary, he  must  expect  it.  The  power  of  compelling  an  enemy 
to  observe  the  rules  of  war,  or  to  refrain  from  violating  any 
particular  one  of  them,  is  called  the  rigJU  of  retaliation.^  A 
general  who  suffers  a  wrong  at  the  hands  of  an  enemy,  or 
who  finds  that  his  enemy  has  violated  any  of  the  accepted 
usages  of  war,  addresses  him  a  communication  setting  forth 
the  facts  which  constitute  his  ground  of  complaint.  If  no 
explanation  or  apology  is  attempted,  or  if  the  enemy  assumes 
the  responsibility  of  the  act,  he  is  justified  in  resorting  to 
measures  of  retaliation.  In  choosing  a  means  of  retaliation, 
revenge  carmot  enter  into  the  consideration  or  decision  of 
the  question.  His  sole  purpose  must  be  to  constrain  his 
adversary  to  discontinue  the  irregular  acts  complained  of. 
Unless  the  enemy's  act  be  in  gross  violation  of  the  dictates 
of  humanity,  he  must  retaliate  by  resorting  to  the  same  or 
similar  acts  in  his  military  operations.''  States  which  find 
themselves  compelled  in  time  of  peace  to  resort  to  retorsion, 
as  a  means  of  obtaining  justice,  are  permitted  to  make  use  of 
equivalent  wrongs.  Generals  who  are  obliged  to  have  recourse 
to  retaliatory  measures,  however,  must  confine  themselves  to 
the  same  or  similar  acts.  This  because  of  the  difificulty  of 
balancing  wrongs,  and  because  the  enemy,  not  appreciating 
the  justice  of  the  remedy  adopted,  may  feel  himself  justified 
in  still  further  departing  from  the  accepted  usages,  and  may 
ultimately  decline  to  be  bound  by  any  of  the  rules  of  civilized 
warfare.^ 

'Hall,  §  135;  Boyd's  Wheaton,  liv.  iii.  chap.  viii.  §  141 ;  liv.  iv.  chap. 

§  347  ;  Snow,  p.  97  ;  Woolsey,  §132;  vii.  §  102. 

II   Ferguson,  §  196;  Risley,  p.  126;  "^  Woolsey,  §  132;  Risley,  p.  126; 

Creasy,  p.  401  ;  III  Phillimore,  p.  Field,  International  Code,  §§  758, 

156;    Bluntschli,   §    567;    Walker,  759. 

Science  of  Int.  Law,  p.  349;  Vattel,  ^  The  law  of  war  can   no  more 


THE   LAW  OF  WAR  327 


Military  Occupation 

Temporary  Occupation.  When  an  invading  force  has 
taken  secure  possession  of  a  portion  of  the  territory  of  the 
enemy,  such  territory  is  said  to  be  occupied,  and  the  invader 
is  permitted  to  exercise  there  all  the  rights  of  military  occupa- 
tion. The  former  sovereign  has  been  displaced  by  an  applica- 
tion of  military  force,  but  the  allegiance  of  the  inhabitants  to 
their  former  government,  although  displaced,  or  suspended, 
by  the  existence  of  war  and  the  fact  of  hostile  occupation,  has 
not  been  destroyed.  Their  obedience  to  the  authority  of  the 
invader  is  constrained  and  involuntary,  and  can  be  retained 
by  him  only  so  long  as  the  occupying  force  is  maintained  at 
such  strength,  throughout  the  extent  of  the  occupied  territory, 
as  to  effectively  compel  such  obedience.' 

History  of  the  Different  Views  of  Occupation.  The 
theory  of  the  Roman  law,  upon  the  subject  of  occupation, 
was  that  territory,  or  other  property,  lost  by  the  state  or  by  a 
Roman  citizen,  as  a  result  of  war,  became  the  property  of  a 
captor  who  was  sufficiently  powerful  to  occupy  and  retain  it ; 
it  also  provided  that,  during  such  transient  occupancy,  all  the 
rights  of  sovereignty  and  ownership  were  vested,  for  the  time, 
in  the  owner  or  captor.  The  allegiance  of  the  inhabitants  to 
their  former  sovereign  was  legally  dissolved  and  was,  by  the 

wholly   dispense    with    retaliation  the  real  occurrence,  and  the  char- 

than  can  the   law  of   nations,   of  acter  of  the  misdeeds  that  may  de- 

which  it  isa  branch.     Yet  civilized  mand  retribution.     Unjust  or  in- 

nations  acknowledge  retaliation  as  considerate  retaliation  removes  the 

the  sternest  feature  of  war.    A  reck-  belligerents  fartherand  farther  from 

less  enemy  often  leaves  to  his  op-  the  mitigating  rules  of  a  regularvvar, 

ponent  no  other  means  of  securing  and  byrapid  steps leadsthem  nearer 

himself  against  the  repetition   of  to  the  internecine  wars  of  savages, 

barbarous  outrage. — Par.  27  Inst.  — Par.  28  Ibid, 

for  Armies  of  the  U.  S.     Retalia-  '  Boyd's  Wheaton,  §  346c;  U.  S. 

tion  will,  therefore,  never  be  resort-  vs.    Percheman,    7   Peters,  86,   %j; 

ed  to  as  a  measure  of  mere  revenge,  Leitendorfer  vs.  Webb,  20  Howard, 

but  only  as  a  means  of  protective  176;  U.  S.  vs.  Moreno,  i  Wallace, 

retribution,    and,    moreover,    cau-  400;  II  Halleck,  pp.  462-465;  Ris- 

tiously  and    unavoidably;    that  is  ley,  pp.  135-139;  Hall,  pp.  462,  463; 

to  say,  retaliation  shall  only  be  re-  Creasy,  pp.  496,  497. 
sorted  to  after  careful  inquiry  into 


328  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

very  fact  of  such  hostile  occupation,  transferred  to  the  new 
sovereign.  This  view  was  maintained,  in  practice,  until  after 
the  middle  of  the  eighteenth  century.' 

Towards  the  close  of  the  last  century,  however,  and  as  a 
consequence  of  the  frequent  cases  of  occupation  during  the 
wars  that  followed  the  French  Revolution,  a  different  view 
began  to  prevail.  The  doctrine  of  a  complete  transfer  of 
allegiance  and  sovereignty  was  generally  abandoned,  and  was 
replaced  by  a  theory  of  temporary  substitution  of  sovereign- 
ty, involving  a  temporary  transfer  of  allegiance  on  the  part  of 
the  inhabitants  of  the  occupied  territory.  This  view  may  be 
stated  as  follows :  "  The  power  to  protect  is  the  foundation  of 
the  duty  of  allegiance;  when,  therefore,  a  state  ceases  to  be 
able  to  protect  a  portion  of  its  subjects,  it  loses  its  claim  upc  n 
their  allegiance,  and  they  either  directly  pass  under  a  tem- 
porary or  qualified  allegiance  to  the  conqueror,  or,  as  it  is  also 
put,  being  able,  in  their  state  of  freedom,  to  enter  into  a  com- 
pact with  the  invader,  they  tacitly  agree  to  acknowledge  his 
sovereignty  in  consideration  of  the  relinquishment  by  him  of 
the  extreme  rights  of  war  which  he  holds  over  their  lives  and 
property."  ^ 

Difference  of  Opinion  as  to  the  Meaning  of  the  Term 
Occupation.  The  precise  meaning  of  the  term  occupation  has 
given  rise  to  much  difference  of  opinion.  A  definition  was 
adopted  by  The  Hague  Conference,  in  1899;  in  accordance 
with  which  territory  is  regarded  as  occupied  "when  it  finds 
itself  placed  in  fact  under  the  authority  of  the  hostile  army. 
The  occupation  only  extends  to  those  territories  where  this 
authority  is  established  and  in  a  position  to  be  exercised."' 
As  the  conclusions  of  the  Peace  Conference  were  expressed  in 
the  form  of  a  treaty,  it  follows  that  the  principle  above  set 

'  Grotius,  liv.  iii.  chap.  viii.  §  4;  Martens,  Precis,  §  280;  Shanks  vs. 

Albericus  Gentilis,  De  Jure  Belli,  Dupont,  3  Peters,  246;  II  Halleck, 

liv.  iii.  chap,  v.;  Hall,  pp.  462,  463;  pp.  462-464;  IV  Calvo,  §  2166. 

De  Martens,  Precis,  §  280;  Heffter,  ^Article    i    Hague  Conference; 

§132;    Creasy,  pp.  496-502  ;    Law-  Creasy,  pp.  496-504;  Lawrence,  Int. 

rence,  Int.  Law,  §  200.  Law,  §§200,  201  ;  IV  Calvo.  §§2166- 

^  Hall,  p.  467;  Kliiber,  §  256;  De  2192. 


THE   LAW   OF   WAR  329 

forth  now  constitutes  the  rule  of  international  law  on  this  sub- 
ject, in  so  far  as  the  signatory  parties  to  that  instrument  are 
concerned. 

Opposing  Views.  Two  views  have  been  advanced  as  to 
what  constitutes  military  occupation.  One,  maintained  by 
England  and  the  smaller  European  states,  regards  a  portion  of 
territory  as  occupied  only  when  it  is  held  by  a  force  sufficient 
to  maintain,  at  all  points,  the  authority  of  the  invader,  and  to 
suppress  uprisings  against  such  authority.  The  Swiss  dele- 
gate to  the  Brussels  Conference  properly  compared  this  view 
of  military  occupation  to  a  valid  blockade  ;  both,  to  be  bind- 
ing, must  be  maintained  in  sufficient  force  to  be  effective. 
The  other,  and  opposite  view,  is  supported  by  some  of  the 
more  powerful  Continental  states;  they  regard  occupation  as 
complete  when  the  principal  armies  of  the  enemy  have  been 
defeated  and  the  authority  of  the  legitimate  government  has 
been  displaced  or  overthrown.  Obedience  then  becomes  the 
duty  of  the  population,  independently  of  the  force  by  which 
such  authority  is  maintained.  Risings  against  the  authority 
of  an  invader  are  by  them  viewed  as  illegal ;  subjecting  per- 
sons, districts,  and  towns  who  favor  them,  or  who  take  part  in 
them,  to  severe  punishments. 

The  operation  of  this  rule  would  work  to  the  advantage 
of  states  which  maintain  large  standing  armies,  and  would 
greatly  facilitate  aggressive  warfare.  It  would  operate  with 
greatest  force  against  states  which  maintain  small  permanent 
establishments,  whose  policy  is  rather  defensive  than  offensive, 
and  who  are  obliged  to  rely,  in  time  of  war,  upon  the  united 
resistance  of  their  entire  combatant  population. 

Of  the  two  views  which  have  been  described,  there  can  be 
no  question  that  the  former  is  more  nearly  in  accordance  with 
the  present  rule  of  international  law.  Occupation  is  an  act 
of  force,  the  authority  of  the  invader  is  maintained  by  force, 
the  obedience  of  the  population  is  compelled  by  force,  and 
obedience  exists  only  so  long  as  the  constraint  continues. 
The  right  of  revolution  is  now  recognized  to  exist,  even  against 
the  regular  government  of  a  state,  which  rests  upon  the  pre- 


330      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

sumed  consent  of  the  governed.  Still  more  does  the  right  of 
armed  resistance  exist  against  an  authority,  which  not  only 
has  no  basis  in  the  consent  of  the  governed,  but  which  is  en- 
forced and  maintained,  against  such  consent,  by  superior  mili- 
tary force. 

Present  View  of  Occupation.  A  portion  of  the  territory 
of  the  enemy  is  therefore  said  to  be  occupied  when  the  author- 
ity of  the  former  government  has  been  overthrown  within  its 
boundaries,  and  it  is  held  by  a  sufficient  military  force  to  pre- 
vent uprising,  to  protect  life  and  property,  and  secure  the 
prevalence  of  order  throughout  the  occupied  district.  Occu- 
pation is  thus  seen  to  be  a  question  of  fact  and  can  never  be 
presumed ;  if  a  territory  frees  itself  from  the  exercise  of  this 
authority,  it  ceases  to  be  regarded  as  occupied.' 

In  accordance  with  the  present  view  of  occupation,  there- 
fore, no  permanent  change  ensues  in  the  national  character, 
or  allegiance,  of  the  population  of  an  occupied  territory  as  a 
result  of  the  mere  fact  of  occupation.  The  invader  maintains 
himself  in  such  territory  by  force.  The  relation  existing,  be- 
tween the  commanding  general  of  the  occupying  force  and 
the  population,  is  not  that  of  allegiance,  but  of  constrained 
obedience ;  and  it  exists  only  so  long  as  he  is  able  to  compel 
such  obedience  by  force.  The  authority  exercised  by  an  in- 
vader is  something  entirely  different  from  that  exercised  by 
the  legitimate  government,  and  rests  upon  an  entirely  differ- 
ent basis.  In  most  respects  it  is  greater  and  more  extensive 
than  the  latter,  and  has  no  foundation  in  the  consent  of  the 
governed. 

The  legitimate  government  of  the  occupied  territory  is  tem- 
porarily displaced  and  overthrown  ;  the  functions  of  its  officers 
and  agents  are  suspended,  and  the  territory  is  ruled  by  martial 
law.  The  ordinary  civil  laws  of  the  country  continue  to  exist, 
and  the  courts  are  permitted  to  administer  them,  but  they  do 
so  at  the  pleasure  of  the  commanding  general  of  the  occupy- 


*  I   Ferguson,  pp.  296,  297  ;  Ar-     Walker,  Manual,  pp.  143-145  ;  Hall, 
tides  42-56    Hague    Conference;     pp.  469,  470;  Creasy,  pp.  502-505. 


THE   LAW   OF   WAR 


331 


ing  forces.  No  guarantees,  constitutional  or  otherwise,  are 
effective  against  his  will,  and  his  consent  to  their  existence, 
or  execution,  may  be  withdrawn  at  any  time.  The  occupation 
is  military,  not  civil,  and  the  invader,  in  carrying  on  his  govern- 
ment, is  controlled  by  various  considerations,  among  which, 
from  the  necessities  of  the  case,  those  of  a  military  character 
are  likely  to  prevail.' 

Rights  of  Occupation.  The  movable  property  of  the  dis- 
placed government  vests  in  the  belligerent  invader  by  right  of 
capture.  He  may  make  such  use  of  the  state  property  and  lands 
as  he  sees  fit,  and  the  income  from  such  property  is  payable 
to  him  during  the  period  of  his  occupation.  Taxes  due,  and 
payable,  are  collected  by  his  authority,  and  are  expended 
under  his  direction.  If  he  increases  them,  or  imposes  any 
other  burdens  or  exactions  upon  persons  or  property,  he 
does  so  by  virtue  of  his  right  to  levy  contributions  and 
requisitions.'* 


'  Boyd's  Wheaton,  §  346c  ;  U.  S. 
vs.  Rice,  4  Wheaton,  246  ;  Fleming 
vs.  Page,  9  Howard,  603,  614;  II 
Halleck,  pp.  449-^453;  Lawrence, 
Int.  Law,  §§  201,  203  ;  IV  Calvo,  §§ 
2166-2194;  II  Guelle,  pp.  11-173; 
I  Dig.  Int.  Law,  §  3. 

'  The  conquering  power  has  a 
right  to  displace  the  pre-existing 
authority  and  to  assume,  to  such 
extent  as  it  may  deem  proper,  the 
exercise  by  itself  of  all  powers  and 
functions  of  government.  It  may 
appoint  all  the  necessary  officers 
and  clothe  them  with  designated 
powers,  larger  or  smaller,  accord- 
ing to  its  pleasure.  It  may  pre- 
scribe the  revenues  to  be  paid,  and 
apply  them  to  its  own  use  or  other- 
wise. It  may  do  anything  neces- 
sary to  strengthen  itself  and  weak- 
en the  enemy.  There  is  no  limit 
to  the  powers  that  may  be  exerted 
in  such  cases,  save  those  which  are 
found  in  the  laws  and  usages  of  war. 
— New  Orleans  vs.  Steamship  Com- 
pany, 20  Wallace,  387  [394].    An 


island  conquered  and  occupied  by 
the  enemy  is,  for  belligerent  and 
commercial  purposes,  his  soil.  The 
produce  of  that  soil  is  liable  to  con- 
demnation while  it  belongs  to  the 
individual  proprietor  of  the  soil 
which  produced  it,  although  he  is 
a  neutral.  —  Thirty  Hogsheads  of 
Sugar  vs.  Boyle,  9  Cranch,  191.  By 
the  conquest  and  military  occupa- 
tion of  a  portion  of  the  territory  of 
the  United  States  by  a  public  ene- 
my, that  portion  is  to  be  deemed  a 
foreign  country,  so  far  as  respects 
our  revenue  laws.  —  United  States 
vs.  Rice,  4  Wheaton,  246.  By  the 
conquest  and  occupation  of  Castine, 
that  territory  passed  under  the  tem- 
porary allegiance  and  sovereignty 
of  the  enemy.  The  sovereignty  of 
the  United  States  over  the  territory 
was  suspended  during  such  occupa- 
tion, so  that  the  laws  of  the  United 
States  could  not  be  rightfully  en- 
forced there,  or  be  obligatory  upon 
the  inhabitants  who  remained  and 
submitted  to  the   conquerors.  — ' 


332 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


The  purpose  of  war  is  to  obtain  redress  for  an  international 
wrong.  To  accomplish  this  purpose  the  use  of  force  which  is 
excessive,  or  which  does  not  directly  contribute  to  the  end  in 
view,  is  not  lawful.  An  invader,  therefore,  is  not  justified, 
during  his  temporary  occupancy,  in  making  political  or  consti- 
tutional changes  in  the  government  of  the  occupied  territory.' 

The  officers  and  men  of  the  occupying  forces  are  exempt 
from  the  jurisdiction  of  the  courts  of  the  occupied  territory; 
and  this  immunity  continues  during  the  entire  period  of  the 
occupation.  OfTences  committed  by  them  are,  during  the 
occupation,  exclusively  triable  by  military  tribunals.^  It  is 
usual  for  the  commanding  general  of  the  occupying  forces 
to  announce  this  immunity  in  appropriate  proclamations  or 
orders,  but  the  immunity  is  independent  of,  and  is  not  created 
by,  such  announcement. 

The  civil  courts  of  the  country  should  be  kept  open,  and, 
wherever  practicable,  the  subordinate  officers  of  the  adminis- 
tration should  be  continued  in  their  functions  ;  supported  and 
sustained,  if  need  be,  by  the  military  force  of  the  invader. 
The  responsibility  of  maintaining  public  order,  and  of  punish- 
ing crime,  falls  directly  upon  the  commanding  general  of  the 
occupying  force.  In  the  performance  of  this  duty  he  may 
make  use  of  the  local  criminal  courts,  wholly  or  in  part ;  or  he 
may  resort  to  martial  law.^ 

U.  S.  vs.  Hayward,  2  Gallison,  485  of  the  Army  and  Navy,  authorized 

[501] ;  Bluntschli,  §§  531-548.  the  military  and  naval  commander 

1 II  Halleck,  pp.  449-453  ;  Boyd's  of  our  forces  in  California  to  exer- 

Wheaton,  §  346c;    Snow,  pp.  109-  cise  the  belligerent  rights  of  a  con- 

113  ;    Hall,  pp.  469,  470  ;  Woolsey,  queror,  and  to  form  a  civil  govern- 

§  153;  IV  Calvo,  §§  2166,2167.  ment  for  the  conquered  country, 

-  Dow   7JS.   Johnson,    100   U.    S.  and   to   impose  duties  on  imports 

158,  164;    Coleman  vs.  Tennessee,  and  tonnage  as  military  contribu- 

97  U.  S.  506.  tions  for  the  support  of  the  govern- 

=*  California,  or  the  port  of  San  ment  and  of  the  army  which  had 

Francisco,  had  been  conquered  by  the  conquest  in  possession.  .  .  .  No 

the  arms  of  the  United  States  as  one  can  doubt  that  these  orders  of 

early  as  1846.     Shortly  afterward,  the   President,   and  the  action  of 

the  United  States  had  military  pos-  our  army  and  navy  commander  in 

session  of  all  of  Upper  California,  conformity  with  them,  were  accord- 

ESrly    in    1847,  the    President,  as  ing  to  the  law  of  arms  and  the  right 

constitutional  commander-in-chief  of  conquest,  or  that  they  were  op- 


THE   LAW   OF   WAR  333 

Martial  Law.  Martial  laiv,  or,  to  speak  more  correctly, 
military  rule,  or  the  law  of  hostile  occupation,  is  a  term  applied 
to  the  government  of  an  occupied  territory  by  the  command- 
ing general  of  the  invading  force.  Martial  law  also  prevails  in 
the  immediate  theatre  of  operations  of  an  army  in  the  field.' 
The  reason  in  both  cases  is  the  same.  The  ordinary  agencies 
of  government,  including  the  machinery  provided  for  the  pre- 
vention and  punishment  of  crime,  are  suspended  by  the  fact 
of  war.  This  suspension  takes  place  at  a  time  when  society 
is  violently  disturbed,  when  the  usual  restraints  of  law  are  at  a 
minimum  of  efficiency,  and  when  the  need  of  such  restraints 
is  the  greatest  possible.  This  state  of  affairs  is  the  direct  re- 
sult of  the  invasion,  or  occupation,  of  the  disturbed  territory 
by  an  enemy.  The  only  organized  power  capable  of  restoring 
and  maintaining  order  is  that  of  the  invading  force,  which  is 
vested  in  its  commanding  general.  Upon  him,  therefore,  in- 
ternational law  places  the  responsibility  of  preserving  order, 
punishing  crime,  and  protecting  life  and  property  within  the 
limits  of  his  command.  His  power  in  the  premises  is  equal 
to  his  responsibility.  In  cases  of  extreme  urgency,  such  as 
arise  after  a  great  battle,  or  the  capture  of  a  besieged  place  or 
a  defended  town,  he  may  suspend  all  law,  and  may  punish 
crimes  summarily,  or  by  tribunals  of  his  own  constitution.^ 

erative  until  the  ratification  and  ex-  475  -  480  ;   I   Kent,  p.  178,  note  ;   I 

change  of  a  treaty  of  peace.    Such  Cooley's   Blackstone,  p.  413,  note; 

would    be   the  case   upon  general  Luther  vs.   Borden,  7    Howard,  i, 

principles   in    respect  to  war  and  45  ;  iT.r/rtr/^?  Milligan,  4  Wallace,  2. 

peace  between  nations.     In  this  in-  *  Hall,  pp.  469,  470  ;  H  Ferguson, 

stance  it 's  recognized  by  the  treaty  §§  187,  269;    Risley,  pp.  135-139; 

itself. — Cross  7/ j-.  Harrison,  16  How-  Snow,    pp.    109-113;    Creasy,    pp. 

ard,  190.    TheConstitution  didnot  505-507;    Instructions  to  Armies 

prohibit  the  creation    by  military  of  the  United  States,  etc.,  pars,  i- 

authority  of  courts  for  the  trial  of  13.     Martial  law  is  the  law  of  mili- 

civil  causes  during  the  civil  war  in  tary  necessity  in  the  actual  presence 

conquered  portionsof  the  insurgent  of  war.     It  is  administered  by  the 

states.     The  establishment  of  such  general  of  the  army,  and  is  in  fact 

courts  was  the  exercise  of  the  or-  his   will.     Of   necessity  it  is  arbi- 

dinary  rights   of  conquest.  —  Me-  trary,    but    it  must  be    obeyed. — 

chanicsandTraders'Bankw.Union  United    States  vs.    Diekelman,   92 

Bank,  22  Wallace,  276.  U.  S.  526.     A  merchant  vessel  of 

■  Creasy,  pp.  505-507;  Finlason,  one  country  visiting,  for  the  pur- 

p.  107  ;  Pomeroy,  Const.  Law,  pp.  pose  of  trade,  a  port  of  another 


334  THE   ELEMENTS   OF   INTERNATIONAL    LAW 

If  his  occupation  be  temporary,  amounting  to  a  mere  pas- 
sage through  a  portion  of  the  enemy's  territory,  he  may  de- 
chne  to  interfere  in  local  affairs,  further  than  to  make  such 
transient  dispositions  as  will  protect  non-combatants  and  their 
property  along  his  line  of  march.  If  he  occupies  a  district  for 
a  considerable  period  of  time  his  responsibility  becomes  more 
general,  and  the  performance  of  his  duty  more  intricate  and 
difificult.  To  deduce  a  rule  that  shall  control  a  general  com- 
manding in  an  enemy's  country,  his  position  and  duty  must 
be  clearly  understood.  He  appears  in  the  occupied  territory 
as  an  agent  of  his  government,  charged  with  conduct  of  cer- 
tain military  operations.  His  first  responsibility  is  to  his  own 
government,  for  the  successful  conduct  of  the  military  opera- 
tions with  the  direction  of  which  he  is  charged.  In  carrying 
on  those  operations  his  government  and  himself  are  bound  by 
the  laws  of  war.  The  usages  of  war  authorize  him  to  employ 
certain  forcible  measures  towards  his  enemy.  They  forbid  in- 
discriminate violence,  the  use  of  excessive  force,  or  the  use  of 
any  force  which  does  not  contribute  directly  to  the  end  for 
which  the  war  is  undertaken.  His  exercise  of  authority  in  the 
occupied  territory  must,  therefore,  be  the  least  possible,  con- 
sistent with  these  ends.  He  may  suspend  the  constitution 
and  municipal  laws,  but  he  cannot  change  them,  because  such 
changes  in  no  way  contribute  to  the  prosecution  of  the  war. 
He  can  impose  no  unusual  or  unauthorized  burdens  upon  per- 
sons and  property,  because  the  laws  of  war  require  him  to 
protect  them.' 

If  the  territory  is  to  be  occupied  for  a  considerable  time, 
but  without  the  intention,  on  the  part  of  the  invader,  of  per- 
manently incorporating  it  in  his  own  dominions,  it  is  usual  to 
permit  the  local  laws  to  prevail,  and  to  sanction  their  enforce- 
ment by  the  existing  courts  and  other  legal  agencies.  Crimes 
of  special  atrocity,  offences  against  the  laws  of  war,  and  crimes 

where  martial  law  has  been  estab-  '  Hall,  pp.  469-478;  II  Halleck, 

lished,  under  belligerent  right,  sub-  pp. 446-477;  Risley,  pp.  134-140; 

jects  herself  to  that  law  while  she  Creasy,  pp.  504-510. 
is  in  such  port. — Ibid. 


THE  LAW  OF  WAR  335 

over  which  neither  the  local  nor  military  courts  have  jurisdic- 
tion, are  tried  and  punished  by  military  commissions,  or  other 
special  tribunals,  constituted  for  the  purpose  by  the  command- 
ing general.  The  existence  of  these  tribunals  is  recognized  by 
the  laws  of  war  as  a  necessity  of  martial  rule.' 

Indefinite  Occupation.  When  territory  comes  into  the 
temporary  possession  of  a  state,  as  a  result  of  war,  and  its 
ultimate  disposition  is  to  be  subsequently  determined,  the 
state  into  whose  temporary  possession  it  passes  becomes  vest- 
ed with  full  rights  of  sovereignty,  in  so  far  as  foreign  states 
and  its  former  sovereign  are  concerned,  from  the  date  of  the 
occupation,  which  is  confirmed  by  the  treaty  of  peace.  In 
respect  to  the  occupied  territory,  however,  the  new  sovereign 
occupies,  in  most  respects,  the  status  of  a  trustee.  If  his 
duties  are  not  defined  by  the  treaty  of  peace  they  are  deter- 
mined by  the  circumstances  of  the  case  ;  and  he  administers 
the  affairs  of  the  territory  in  the  interest  of  its  inhabitants 
until  the  question  of  its  ultimate  disposition  has  been  lawfully 
determined.  While  all  governmental  authority,  legislative 
and  judicial,  as  well  as  executive,  vests  in  the  new  sovereign, 
such  authority  must  be  exercised  with  constant  reference  to 
its  transient  and  temporary  character.  "  He  is  therefore  for- 
bidden, as  a  general  rule,  to  vary  or  suspend  laws  affecting 
property  and  private  personal  relations,  or  which  regulate  the 
moral  order  of  the  community.  Commonly,  also,  he  has  not 
the  right  to  interfere  with  the  public  exercise  of  religion,  or  to 
restrict  expression  of  opinion  upon  matters  not  directly  touch- 
ing his  iule."° 

Permanent  Occupation.  The  rules  which  have  been  dis- 
cussed refer  to  cases  of  temporary  or  indefinite  occupation. 

'  II  Halleck,  pp.  452-454.  occupation  of  Tampicoby  thearms 
^  Hall,  §  155;  Bluntschli,  §§  539  of  the  United  States  during  the  war 
540;  Creasy,  p.  507;  Proclamatior.  with  Mexico,  though  sufficient  to 
of  Count  Bismarck- Bohlen  to  in-  cause  it  to  be  regarded  by  other 
habitantsof  Alsace.August  30,1871,  nations  as  part  of  our  territory,  did 
D'Angeberg,  No.  371;  Dana's  Whea-  not  make  it  a  part  of  the  United 
ton,  §  347,  note  169  ;  Risley,  p.  137;  States  under  our  Constitution  and 
II  Halleck,  pp.  450-451  ;  I  Wild-  laws.  —  Fleming  vs.  Page,  9  How- 
man,  pp.  162-164.    The  capture  and  ard,  603. 


336  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

When  a  conquest  is  to  be  made  permanent,  as  when  territory 
is  acquired  by  conquest,  or  a  province  is  recovered  by  the  state 
to  which  it  originally  belonged,  a  belligerent  is  justified  in 
making  such  permanent  political  changes  as  he  may  deem  ex- 
pedient or  necessary. 

In  so  far  as  the  property  rights  of  individuals  are  concerned, 
however,  "  it  is  very  unusual,  even  in  cases  of  conquest,  for 
the  conqueror  to  do  more  than  to  displace  the  sovereign  and 
assume  dominion  over  the  country.  The  modern  usage  of 
nations,  which  has  become  law,  would  be  violated;  that  sense 
of  justice  and  of  right  which  is  acknowledged  and  felt  by  the 
whole  civilized  world  would  be  outraged,  if  private  property 
should  be  generally  confiscated,  and  private  rights  annulled. 
The  people  change  their  allegiance;  their  relation  to  their 
ancient  sovereign  is  dissolved;  but  their  relations  to  each  other, 
and  their  rights  of  property,  remain  undisturbed."* 

The  Intercourse  of  Belligerents  in  War 

Necessity  and  Sanction.  Although  the  rule  of  non-inter- 
course between  belligerent  states  prevails  with  great  strictness 
during  the  existence  of  war  between  them,  it  would  be  impos- 
sible even  for  hostilities  to  be  carried  on,  if  all  intercourse, 
irrespective  of  its  character  and  purpose,  were  to  be  absolute- 
ly prohibited.  International  law  recognizes  this  necessity, 
and  deduces  from  the  usages  of  nations  in  war  the  rules 
governing  such  intercourse,  the  conditions  upon  which  it  is 
based,  and  the  formalities  with  which  it  shall  begin  and  end. 
Such  intercourse,  to  be  lawful,  must  have  some  direct  connec- 
tion with  the  existing  state  of  war,  or  must  be  carried  on  with 
a  view  to  the  re-establishment  of  friendly  relations. 

'  U.  S.  vs.  Percheman,  7  Peters,  Strother  vs.  Lucas,  12  Peters,  4fo; 

51,  86;  III  Phillimore,  §§  539-544,  Mitchell  vs.  United  States,  9  Ibid. 

579-596;  I  Dig.  Int.  Law,  §§  3-5;  711;  More  7's.  Steinbach,  127  U.S. 

II  Ibid.  §  187,  III  Ibid.  §  3V4;  IV  70;    Leitensdorfer    vs.    Webb,    20 

Calvo,  §§  2453-2490;  Bluntschli,  §§  Howard,    176;    United    States    vs. 

289,  576,  715,  733;  II  Guelle,  pp.  Huckabee,  16  Wallace,  414;  vol.  iii. 

251-258;  II  Ferguson,  §309;  Law-  Revue  de  Droit  International,  pp. 

rence.  Int.  Law,  §239;  United  States  531-539;  iv.  Ibid.  622;  v.  Ibid.  69- 

vs.   Repentigny,   5    Wallace,    211;  121,252-254,531-539. 


THE   LAW   OF   WAR  337 

Flags  of  Truce.  Communication  between  belligerents  in 
the  field  is  established  by  means  of  flags  of  truce.  They  are 
sent  towards  the  enemy's  lines  habitually  during  an  interval  of 
active  operations.  In  case  of  extreme  urgency  they  may  be 
sent  during  an  engagement.  Though  each  party  has  a  right 
to  send  them,  there  is  no  corresponding  obligation  on  the  part 
of  the  enemy  to  receive  them,  though  it  is  usual  to  do  so  save 
in  very  exceptional  cases.  After  due  notification  has  been 
given  they  may  be  warned  away ;  and,  after  a  reasonable  time 
has  been  given  to  allow  them  to  withdraw,  they  may  be  fired 
upon.  An  officer  coming  under  a  flag  of  truce  has  no  rigJit 
to  enter  the  enemy's  lines,  nor  can  he  demand  that  he  be  con- 
ducted into  the  presence  of  the  commanding  general.  As  a 
matter  of  strict  right  he  cannot  expect  to  pass  the  outposts 
of  the  hostile  army.  His  message,  if  written,  may  there  be 
transferred  to  the  officer  receiving  him,  or,  if  verbal,  the  bel- 
ligerent may  demand  that  it  be  reduced  to  writing,  or  that  it 
be  delivered  orally  to  such  person  as  the  commanding  general 
may  designate  to  receive  it. 

If  permitted  to  pass  the  outposts  he  may  be  blindfolded,  or 
resort  may  be  had  to  such  other  means  as  will  prevent  him 
from  obtaining  information.  While  the  officer  accompanying 
a  flag  may  see  whatever  the  enemy  permits  him  to  see,  while 
in  that  enemy's  lines  under  a  flag  of  truce,  and  the  bearer  of  a 
bona  fide  message,  the  rules  of  war  justly  forbid  the  sending 
of  flags  of  truce  with  a  view  of  obtaining  information,  either 
directly  or  indirectly.  The  present  rule  of  war  regards  the 
use  of  flags  for  the  purpose  of  obtaining  information  as  illegal 
and  dishonorable,  subjecting  the  bearer  to  punishment  as  a 
spy.' 

Safe-conducts  and  Safeguards.  A  safe-conduct  is  a  pass 
given  to  an  enemy  subject  by  the  general  commanding  an 
army  in  the  field.  It  authorizes  the  bearer  to  pass  from  one 
specified  point  to  another,  by  a  specified   route,  and  within 


'II  Halleck,  p.  342;  Risley,  pp.     96,  97;    Boyd's  Wheaton,  §411!; 
152,  155;  Hall,  p.  540;  Snow,  pp.     Ill  Phillimore,  p.  184. 


338     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

certain  stated  limits  of  time.  If  the  authority  granted  be  ex- 
ceeded, the  holder  is  liable  to  be  regarded  as  a  prisoner  of  war. 
If  undue  advantage  be  taken  of  a  safe-conduct,  to  obtain  in- 
formation, the  offender  violates  the  laws  of  war,  and  may  be 
punished  accordingly/  A  safeguard  is  a  written  protection 
to  persons,  or  property,  or  both,  such  persons  being  resident, 
or  property  situated,  within  the  lines  of  the  general  issuing  it. 
It  is  given  upon  the  authority,  and  by,  or  in  the  name  of,  the 
general-in-chief,  and  is  binding  upon  all  persons  under  his  com- 
mand. "  Sometimes  they  are  delivered  to  the  parties  whose 
persons  or  property  are  to  be  protected ;  at  others  they  are 
posted  upon  the  property  itself,  as  upon  a  church,  museum, 
library,  public  office,  or  private  dwelling.  They  are  particu- 
larly useful  in  the  assault  of  a  place,  or  after  its  capture,  or 
after  the  termination  of  a  battle,  to  protect  the  persons  or 
property  of  friends  from  destruction  by  an  excited  soldiery."" 

Violations  of  either  safe-conducts  or  safeguards  are  punished 
with  the  greatest  severity. 

It  is  seen  that  safe -conducts  and  safeguards  are  binding 
upon  the  troops  commanded  by  the  general  who  issues  or 
signs  them.  Whoever  violates  them,  therefore,  not  only 
violates  the  laws  of  war,  but  is  also  guilty  of  the  most  serious 
of  all  military  offences — disobedience  of  orders.  For  this  rea- 
son escorts  are  usually  furnished  to  enforce  respect  to  these 
instruments,  and  severe  penalties  are  imposed  upon  those  who 
violate  them.  Such  escorts  or  guards  are  justified  in  resort- 
ing to  the  severest  measures  to  punish  any  violation  of  their 
trust. 

Licenses  to  Trade.  Licenses  to  trade  are  written  instru- 
ments authorizing  their  holders  to  engage  in  certain  trade 
with  the  enemy.  The  rules  in  accordance  with  which  the 
trade  is  to  be  conducted,  the  articles  to  be  bought,  sold, 
or  exchanged,  the  amount  of  trade  authorized,  the  vehicles. 


'  II  Halleck,  pp.  351-353;  Risley,  ^  II  Halleck,  p.  353;  Risley,  pp. 

pp.  156,  157;  Vattel,  liv.  iii.  chap.  158,  159;  Hall,  p.  553;  Woolsey,  § 

xvii.  §§  265-277;  Hall,  pp.  553-556;  155;  Vattel,  liv.  iii.  chap.  iv.  §  171; 

Woolsey,  §  265  ;  I  Guelle,  p.  231.  I  Guelle,  p.  233. 


THE   LAW   OF   WAR  339 

whether  ships  or  wagons,  etc.,  in  which  it  is  to  be  carried 
on,  are  all  specifically  laid  down  in  the  permit.  A  breach  of 
any  of  its  conditions  involves  the  forfeiture  of  the  goods,  con- 
veyances, and  other  implements  engaged,  as  it  constitutes  an 
offence  similar  to  breach  of  blockade. 

Licenses  are  issued  by  a  belligerent  government,  or  by  a  gen- 
eral in  the  field,  with  the  sanction  of  his  government.  Trade 
carried  on  under  them  becomes  legal,  and  is  so  regarded  by 
courts  of  the  state  by  whom  the  license  is  granted.' 

Cartels  and  Capitulations.  A  cartel  is  an  agreement  en- 
tered into  between  the  commanding  generals  of  opposing 
armies,  or  fleets,  for  the  purpose  of  effecting  an  exchange  of 
prisoners.  Capitulations  are  compacts  entered  into,  between 
the  same  parties,  to  regulate  the  details  of  surrender  of  a  for- 
tified place,  a  vessel  of  war,  or  a  defeated  army  in  the  field. 
They  are  drawn  up  in  the  same  manner  as  treaties,  though 
not  with  the  same  formalities,  and  are  interpreted  in  accord- 
ance with  the  same  rules.  The  general  commanding  an  army 
in  the  field  is  presumed  to  have  authority  to  make  them,  and 
to  give  effect  to  their  provisions.  If  he  lacks  such  authority, 
or  if  his  powers  in  this  respect  be  limited,  it  is  his  duty  to  so 
notify  his  enemy .'' 

The  Termination  of  War 

Truce  and  Peace.  A  truce,  or  suspension  of  arms,  is  a  dis- 
continuance of  hostile  operations  over  the  whole,  or  a  part,  of 
the  theatre  of  military  operations.  They  are  classified  accord- 
ing to  their  purpose  and  duration,  and  according  to  the  author- 
ity of  the  officers  who  may  make  them,  into  special  and  general 
truces.  A  special  truce  may  be  entered  into  by  officers,  of  any 
grade,  who  command  armies  or  separate  detachments.  They 
are  always  of  a  temporary  character,  and  are  made  for  the  pur- 

'  II   Halleck,  pp.  154-160,  364-  264;    Snow,   p.  98;  Hall,  pp.  411, 

379;  Risley,  pp.  158,  159;  Woolsey,  548 ;  Woolsey,  §  154;  Risley,  p.  157; 

§155;  Hall,    pp.    553-556;  Snow,  II    Twiss,    pp.    353-355;    Boyd's 

pp.  loi,  102;    Boyd's  Wheaton,  §§  Wheaton,  §§  253,   254,  405,  41101-, 

341,  409-4103;  Calvo,  §§  1 969-1 996.  Ill    Phillimore,   pp.   181-183;    II 

^  Vattel,  liv.  iii.  chap.  xvi.  §§  261-  Halleck,  pp.  348,  349,  483. 


340  THE  ELEMENTS   OF   INTERNATIONAL  LAW 

pose  of  arranging  the  details  of  surrender  of  a  defeated  army 
or  besieged  place ;  for  burying  the  dead  or  removing  the 
wounded  after  a  battle  or  assault ;  or  for  conveying  a  mes- 
sage to  the  enemy,  and  receiving  his  reply,  in  some  matter  of 
necessary  intercourse.  These  truces  may  be  verbal  or  written. 
In  general  the  agreement  consists  in  the  letter  of  one  general 
proposing  a  truce  for  a  certain  purpose,  and  in  the  reply  of  his 
adversary  accepting  the  proposed  arrangement.  The  duration 
of  the  truce,  in  point  of  time,  is  precisely  stated  in  the  agree- 
ment ;  and  the  truce  expires,  without  notice,  at  the  hour  fixed 
for  its  termination.  Special  truces  are  binding  upon  all  per- 
sons under  the  command  of  the  officers  who  make  them.' 

What  may  be  Done  during  a  Special  Truce.  During  a 
truce  the  contracting  parties  are  bound  to  refrain  from  all  acts 
of  hostility,  and  to  desist  from  all  military  operations  of  a  hos- 
tile character,  and  from  all  preparatory  movements  or  ma- 
noeuvres which  could  not  have  been  performed  during  the 
continuance  of  hostilities,  or  which  would  have  been  performed 
under  the  fire  of  the  enemy.  This  rule  of  conduct  is  deduced 
from  the  definition  of  a  truce — a  suspension  of  hostilities.  The 
end  of  a  truce  should  find  both  belligerents  in  precisely  the 
same  situation  in  which  they  were  when  it  began.  Whatever 
could  have  been  done  without  regard  to  the  enemy  during 
hostilities  may  continue  to  be  done  during  a  truce.  The 
movement  of  trains  over  a  line  of  supply,  the  process  of  col- 
lecting forage  and  provisions,  by  requisition,  in  districts  within 
the  secure  control  of  either  party,  may  continue  during  a  truce. 
It  has  also  been  contended  that  a  closely  invested  place  may 
stipulate  for  the  privilege  of  receiving  an  amount  of  supplies 
equivalent  to  that  consumed  during  the  truce.  In  strict  jus- 
tice, perhaps,  this  claim  should  be  admitted.  The  fall  of  such 
a  place,  however,  is  usually  only  a  question  of  time ;  the  be- 
sieger occupies  a  position  of  decided  advantage,  and  the  parties 

'  Vattel,  liv.  iii.  chap.  xvi.  §§  234,  156;   Snow,   pp.    113,  114;  Creasy, 

235;  II  Halleck,  pp.  342-349;  Boyd's  §§    468-472;    Hall,   §§    543     546; 

Wheaton,  §§  401-407;    III   Philli-  Woolsey,  §  156. 
more,  pp.  184-189;  Risley,  pp.  153- 


THE   LAW   OF   WAR  34I 

enter  the  truce  upon  very  unequal  terms.  The  besieger,  there- 
fore, may  properly  decline  to  yield  the  advantage  which  he  has 
fairly  earned,  by  permitting  provisions  to  be  introduced  into 
the  besieged  place.  To  avoid  difficulty  and  misunderstanding, 
it  is  always  desirable  to  specify,  in  the  agreement,  what  particu- 
lar acts  may  or  may  not  be  done  during  its  continuance.' 

A  General  Truce  or  Armistice  is  an  entire  suspension  of  arms 
over  the  whole  theatre  of  military  operations.  It  is  made  by 
the  belligerent  governments,  or,  with  their  authority,  by  the 
generals  commanding  in  the  field,  and  includes  within  its  scope 
all  operations  and  forces  of  whatever  character.  It  is  usually 
entered  into  when  the  issue  of  the  war  has  been  settled  de- 
cisively in  favor  of  one  of  the  belligerents,  and  with  a  view  to 
negotiations  for  peace.  This  agreement  is  made  with  greater 
formality  than  is  the  case  with  special  truces,  and  describes, 
in  considerable  detail,  what  may  and  may  not  be  done  during 
the  existence  of  the  armistice.  It  is  binding  upon  all  forces, 
both  military  and  naval,  engaged  in  the  war  on  either  side.  It 
goes  into  effect  from  the  date  of  signature,  and  becomes  bind- 
ing upon  individuals  from  the  date  of  notification.  In  naval 
operations  some  time  is  necessary  for  such  notification  to  reach 
vessels  of  war  on  distant  stations,  and  special  arrangements  are 
made  in  such  cases  to  regulate  the  disposition  of  captures  made 
between  the  dates  of  negotiation  and  ratification.^ 

In  the  preparation  of  general  truces,  or  armistices,  the  pos- 
sible resumption  of  hostilities  is  provided  for  by  a  clause 
terminating  the  truce  at  a  certain  date,  or  upon  the  expiration 
of  a  certain  notice.  On  the  date  thus  agreed  upon  the  truce 
ceases  to  have  obligatory  force,  and  hostilities  are  resumed  by 
both  belligerents. 


•  Hall,  §§  543-546 ;  Boyd's  Whea-  =  Hall,  §§   543,   546-548;  Boyd's 

ton,  §§  403,404;    ni    Phillimore,  Wheaton,  §§  400-401;   HI   Philli- 

pp.  186-189;  II  Halleck,  pp.  342-  more,  pp.  183,  184;  \\  Halleck,  pp. 

349;  Risley,    pp.   153-156;   Snow,  342-349;  Risley, pp.  152-157;  Snow, 

pp.  113,  114;   Creasy,  §§  470,  471  ;  pp.  113,  114;   Creasy,  §§   468-472; 

Woolsey,  §§   156,   157;  Vattel,  liv.  Woolsey,  §§  156, 157  ;  Vattel,  liv.  iii. 

iii.  chap.  xvi.  §§  241-260;  I  Guelle,  chap.  xvi."§§  236-244;  IV  Calvo,  §§ 

pp.  234-248;  IV Calvo,  §§2433-2449.  2433-2452." 


342  the  elements  of  international  law 

Treaties  of  Peace 

Treaties  of  Peace  resemble  ordinary  treaties  in  form,  in  the 
detailed  method  of  preparation,  and  in  binding  force.  They 
differ  from  ordinary  treaties,  and  from  private  contracts,  in  re- 
spect to  the  position  of  the  contracting  parties,  who,  from  the 
necessities  of  the  case,  do  not  enter  them  upon  equal  terms. 
This  in  no  respect  detracts  from  their  obligatory  character, 
which  cannot  be  too  strongly  insisted  upon.  "Agreements 
entered  into  by  an  individual  while  under  duress  are  void,  be- 
cause it  is  for  the  welfare  of  society  that  they  should  be  so. 
If  they  were  binding,  the  timid  would  be  constantly  forced 
by  threats  or  violence  into  a  surrender  of  their  rights,  and 
even  into  secrecy  as  to  the  oppression  under  which  they  were 
suffering.  The  [knowledge]  that  such  engagements  are  void 
makes  the  attempt  to  extort  them  one  of  the  rarest  of  human 
crimes.  On  the  other  hand,  the  welfare  of  society  requires 
that  the  engagements  entered  into  by  a  nation  under  duress 
should  be  binding ;  for,  if  they  were  not  so,  wars  would  ter- 
minate only  by  the  utter  subjugation  and  ruin  of  the  weaker 
party.'" 

When  either  belligerent  believes  the  object  of  the  war  to 
have  been  attained,  or  is  convinced  that  it  is  impossible  of  at- 
tainment ;  or  when  the  military  operations  of  either  power 
have  been  so  successful  as  to  determine  the  fortune  of  war 
decisively  in  its  favor,  a  general  truce  is  agreed  upon,  and  ne- 
gotiations are  entered  into  with  a  view  to  the  restoration  of 
peace.  There  is  no  rule  of  positive  obligation  as  to  the  man- 
ner in  which  such  negotiations  shall  be  established.  The 
initiative  may  be  taken  by  either  belligerent,  either  directly 
with  the  hostile  state,  or  indirectly  through  a  neutral  power. 
A  neutral  state  may  tender  its  good  offices  to  either  belliger- 
ent, at  any  time  during  the  continuance  of  hostilities.     The 

1  Senior,    in   vol.   Ixxvii.   of   the  PP- 35-37;  Bluntschli,  §  395  ,  Heff- 

Edinburgh  Review,  p.  307,  cited  by  ter,  §  179.     For  an  opposite  view, 

Creasy,  §§  41,42.     See  also  I  Hal-  see   Mommsen,  History  of  Rome, 

leek,  pp.  260-366;   Vattel,  liv.  iv.  voJ.  i.  p.  403. 


THE  LAW  OF  WAR  343 

purpose  of  the  preliminary  negotiations  is  to  arrange  for  a 
meeting  of  duly  accredited  representatives  charged  with  the 
preparation  of  a  treaty  of  peace.  In  choosing  a  place  of  meet- 
ing a  point  may  be  selected  within  the  territory  of  either  bel- 
ligerent or  in  that  of  a  neutral  state.  If  need  be,  a  preliminary 
agreement  is  made,  guaranteeing  the  neutrality  of  the  place 
of  meeting  and  the  personal  immunity  of  the  ambassadors. 

The  representatives  of  the  belligerent  states  meet  at  the 
time  and  place  agreed  upon,  and,  after  an  exchange  of  full 
powers,  enter  upon  the  task  of  preparing  the  treaty  of  peace. 
When  substantial  agreement  has  been  reached  as  to  the  gen- 
eral terms  of  peace,  a  preliminary  draft  or  treaty  is  sometimes 
prepared,  containing  these  provisions,  and  describing  the  ques- 
tions that  are  to  be  deferred  for  final  settlement  in  the  perma- 
nent treaty.  The  preliminary  treaty  is  signed  and  duly  ratified 
by  the  contracting  parties.  If  the  war  has  been  carried  on  by 
allies  on  either  side,  no  one  of  them  is  justified,  by  any  reason 
less  strong  than  self-preservation,  in  making  peace  without 
the  consent  of  the  others,  or  in  entering  into  a  treaty  prej- 
udicial to  the  common  interest  of  the  allied  powers.' 

Treaties  of  Peace,  when  Binding.  Treaties  of  peace  be- 
come binding  upon  the  signatory  powers  from  the  date  of 
signature.  They  bind  individuals  from  the  date  of  notice.  If 
the  war  has  been  carried  on  in  distant  dependencies,  or  on  the 
sea,  it  is  usual  to  stipulate  in  the  treaty  for  the  restoration  of 
captures  made  between  the  dates  of  signature  and  notifica- 
tion.' 

Effects  of  Treaties  of  Peace.  The  cause  for  which  the 
war  was  undertaken  is  presumed  to  have  been  settled  by  the 
resort  to  arms,  and  by  the  amnesty  contained  in  the  treaty. 
This  is  the  case  whether  the  state  which  was  the  aggressor  in 
the  war  has  or  has  not  been  successful  in  its  resort  to  force  to 


'  Hall.p.  559,note  i;  Vattel.Hv.  iv.  "  Hall,  §  199;  Vattel,  liv.  iv.  chap, 

chap.  ii.§9;  II  Halleck,  pp.  251-260;  iii.  §  24;  Boyd's  Wheaton,  §   547; 

Risley,  pp.  160,  161 ;  Boyd's  Whea-  I  Halleck,  pp.  261-264;   HI  Philli- 

ton,§§  538-543;  III  Phillimore,  pp.  more,  pp.  776-782;  Snow,  pp.  115, 

ITy^lT^  Snow,  pp.  114,  115.  116. 


344  THE  ELEMENTS   OF   INTERNATIONAL   LAW 

obtain  redress.  The  subjects  of  the  belh'gerent  states,  who 
were  placed  in  a  condition  of  non-intercourse  and  of  legal  hos- 
tility, as  a  result  of  the  declaration  of  war,  are  restored  to 
their  normal  relations.  Citizens  of  the  several  belligerent  states 
resume  friendly  intercourse  and  are  revested  with  the  legal  re- 
lations which  were  interrupted,  but  not  destroyed,  at  the  out- 
break of  hostilities.  Their  right  to  sue  and  be  sued  is  revived, 
obligations  which  were  suspended,  by  the  fact  of  war,  resume 
their  force  with  the  establishment  of  peace,  and  the  payment  of 
public  and  private  debts,  and  of  interest  upon  public  stocks,  is 
resumed.' 

Treatment  of  Occupied  Territory.  Questions  connected 
with  territory,  occupied  by  either  belligerent  at  the  close  of 
the  war,  are  usually  settled  by  the  terms  of  the  treaty.  In 
doing  this  some  status  is  assumed,  and  this  may  be  that  exist- 
ing before  the  war,  or  at  its  close ;  or  an  intermediate  status 
may  be  chosen  that  existed  at  some  instant  during  the  con- 
tinuance of  hostilities.  The  details  of  evacuation  of  occupied 
territory,  fortresses,  and  ports  are  arranged  with  great  precision. 
Forts,  arsenals,  dock-yards,  and  naval  ports,  the  surrender  or 
evacuation  of  which  is  arranged  for  in  the  treaty,  are  trans- 
ferred in  the  condition  in  which  they  were  at  the  date  of  the 
treaty.  They  cannot  be  dismantled,  disarmed,  or  destroyed; 
but  no  obligation  exists  to  repair  them  after  that  date,  even 
when  such  repairs  are  necessary  to  prevent  injury  or  deterio- 
ration.^ 

The  Rule  of  Uti  Possidetis.  If  the  treaty  of  peace  is  silent 
in  respect  to  occupied  territory,  or  contains  no  provisions  in 
respect  to  the  disposition  of  particular  tracts  or  areas,  the  rule 
of  lUi  possidetis  determines  the  sovereignty  or  ownership  of 
the  territory  so  occupied  or  held  ;  that  is,  each  belligerent  re- 
tains the  territory  of  the  enemy  which  was  held  by  him  at 
the  date  upon  which  the  treaty  became  operative.^     The  rule 

'  Vattel,   liv.  iv.   chap.  iii.  §  25;  =*  Vattel,  liv.  iv.  chap.  iii.  §  31; 

Hall,  §  200:  Heflfter,  §  181 ;   Dana's  I  Halleck,  p.  265. 

Wheaton,§  544, note  169;  I  Halleck,  ^  Hall,  §  204;   Dana's  Wheaton, 

p.  260;  ill  Phillimore,  §§  588-590.  §  545;  Heffter,  §  181;    III  Philli- 


THE   LAW   OF   WAR 


345 


as  to  the  real  property  of  the  enemy  is  substantially  the  same 
as  that  applied  to  territory.  Immovable  property,  belonging 
to  either  belligerent,  shares  the  fate  of  the  territory  in  which 
it  is  situated,  unless  otherwise  stipulated  in  the  treaty. 

Movable  property  of  the  enemy  in  the  hands  of  a  belliger- 
ent, at  the  date  of  the  treaty,  becomes  his  by  the  fact  of  pos- 
session. Contributions  levied,  but  not  collected,  become  void 
when  the  treaty  goes  into  effect ;  and  no  new  contributions 
or  requisitions  can  be  levied  by  either  party,  without  the  ex- 
press authorization  of  the  treaty.  The  right  to  levy  tli«m  is 
an  incident  of  belligerency,  and  ceases  at  the  termination  of 
hostilities.* 

Effects  of  Conquest  or  Cession  upon  the  Property  and 
Rights  of  Private  Individuals.  In  respect  to  the  private 
property  of  individuals,  and  their  contract  rights  and  other 
legal  relations  with  each  other,  it  is  now  well  settled  that  they 
undergo  no  change  as  a  result  of  a  transfer  of  territory,  either 
by  conquest  or  treaty."  "  The  usage  of  the  world  is,  if  a  nation 
be  not  entirely  subdued,  to  consider  the  holding  of  a  con- 


more,  §§  539-579;  Kluber,  §  257; 
I  Halleck,  p.  266;  II  Ibid.  p.  514; 
Risley,  pp.  135-160;  The  Piirissi- 
ma  Concepcion,  6  Robinson,  Adm. 
Rep.  p.  45- 

'  Vattel,  liv.  iv.  chap.  iii.  §§  24-29  ; 
V  Calvo,  §  3142  ;  Hall,  §  198  ;  Heff- 
ter,5  180;  Bluntschli,§7i7.  "Even 
in  cases  of  conquest  it  is  very  un- 
usual for  the  conqueror  to  do  more 
than  to  displace  the  sovereign  and 
assume  dominion  over  the  country. 
The  modern  usage  of  nations,  which 
has  become  law,  would  be  violated ; 
that  sense  of  justice  and  right  which 
is  acknowledged  and  felt  by  the 
whole  civilized  world  would  be 
outraged  if  private  property  should 
be  generally  confiscated,  and  pri- 
vate rights  annulled,  on  a  change  in 
the  sovereignty  of  the  country  by 
the  Florida  treaty.  The  people 
change  their  allegiance,  their  rela- 
tion to  their  ancient  sovereign  is 


dissolved,  but  their  relations  to 
each  other  and  their  rights  of  prop- 
erty remain  undisturbed.  Had 
Florida  changed  its  sovereign  by 
an  act  containing  no  stipulation 
respecting  the  property  of  individ- 
uals, the  right  of  property  in  all 
those  who  become  subjects  or  citi- 
zens of  the  new  government  would 
have  been  unaffected  by  the  change. 
It  would  have  remained  the  same 
as  under  the  ancient  sovereign." 
— United  States  7'^.  Percheman,  7 
Peters,  5 1 ;  United  States  vs.  Clarke, 
8  Peters,  436 ;  Delassus  vs.  The 
United  States,  9  Peters,  117;  Mit- 
chel  vs.  United  States,  9  Peters, 
711. 

"^  Vattel,  liv.  i.  chap.  xx.  §§  244, 
245;  Hall,  §§  198,  199;  Dana's 
Wheaton,  §  544,  note  169;  Heff- 
ter,  §§  133-150;  I  Halleck,  p.  260; 
IV  Calvo,  §  2478;   III  Phillimore, 

§§  587-595- 


346  THE   ELEMENTS   OF  INTERNATIONAL   LAW 

quered  territory  as  a  mere  military  occupation  until  its  fate 
shall  be  determined  by  the  treaty  of  peace.  If  it  be  ceded  by 
the  treaty,  the  acquisition  is  confirmed,  and  the  ceded  territory 
becomes  a  part  of  the  nation  to  which  it  is  annexed,  either  on 
the  terms  of  the  treaty  of  cession  or  on  such  as  its  new  mas- 
ter shall  impose.  On  such  a  transfer  of  territory  it  has  never 
been  held  that  the  relations  of  the  inhabitants  with  each 
other  undergo  any  change.  Their  relations  with  their  former 
sovereign  are  dissolved,  and  new  relations  are  created  between 
them  and  the  government  which  has  acquired  their  territory. 
The  same  act  which  transfers  their  country  transfers  the  alle- 
giance of  those  who  remain  in  it ;  and  the  law,  which  may  be 
deemed  political,  is  necessarily  changed,  although  that  which 
regulates  the  intercourse  and  general  conduct  of  individuals 
remains  in  force  until  altered  by  the  newly  created  power  of 
the  State."  ' 

Allegiance  of  the  Population  of  the  Conquered  or  Ceded 
Territory.  When  territory  changes  hands,  by  cession  or  con- 
quest, the  fact  that  allegiance  is  now  based  upon  consent  is 
usually  recognized  by  the  insertion  of  a  clause  in  the  treaty 
by  which  the  conquest  is  completed  or  the  cession  accom- 
plished, permitting  such  of  the  inhabitants  as  desire  to  retain 
their   former   citizenship    to    dispose    of   their    property   and 

'  American  Insurance  Company  ince  retain  all  the  rights  of  prop- 
vs.  Canter,  i  Peters,  542 ;  United  erty  which  have  not  been  taken 
States  7^^.  Percheman,  7  Peters,  51,  from  them  by  the  orders  of  the 
56.  "  By  the  law  of  nations  the  conqueror,  or  the  laws  of  the  sov- 
rights  and  property  of  the  inhabi-  ereign  who  acquired  it  by  cession, 
tants  are  protected,  even  in  the  case  and  remain  under  their  former  laws 
of  a  conquered  country,  and  held  until  they  shall  be  changed." — 
sacred  and  inviolable  when  it  is  Mitchel  t/j-.  United  States,  9  Peters, 
ceded  by  treaty,  with  or  without  734.  "By  the  'laws  of  Spain'  is 
any  stipulation  to  such  effect ;  and  understood  the  will  of  the  King, 
the  laws,  whether  in  writing  or  evi-  expressed  in  his  orders,  or  by  .his 
denced  by  the  usage  and  customs  authority,  evidenced  by  the  acts 
of  the  conquered  or  ceded  country,  themselv^es  ;  or  by  such  usage  and 
continue  in  force  till  altered  by  customs  in  the  province  as  may  be 
the  new  sovereign." — Strother  vs.  presumed  to  have  emanated  from 
Lucas,  12  Peters,  410  [436].  "By  the  King,  or  to  have  been  sanc- 
the  law  of  nations,  the  inhabitants,  tioned  by  him,  as  existing  author- 
citizens,  or  subjects  of  a  conquered  ized  local  laws."  — Smith  vs.  The 
orcededcountry,  territory,  or  prov-  United  States,  10  Peters,  326. 


THE   LAW   OF  WAR 


347 


return  to  the  state  of  their  original  allegiance.  Individuals 
who  decline  to  take  advantage  of  this  permission  and  elect 
to  remain  in  the  ceded  territory  are  presumed  to  consent  to 
the  change  in  allegiance  which  is  involved  in  the  conquest  or 
cession/  From  the  nature  of  the  case,  however,  no  formal 
guarantee  of  the  allegiance  of  the  population  of  territory  thus 
transferred  is  either  given  or  expected.  It  is  proper  to  say, 
also,  that  while  the  inhabitants  of  conquered  or  ceded  terri- 
tory become  vested  with  the  rights  of  citizenship  by  the  fact 
of  conquest  or  cession,  in  so  far  as  other  states  are  con- 
cerned, their  actual  absorption  into  the  body  politic  of  the 
conquering  state  is  a  matter  which  is  regulated,  not  by  inter- 
national law,  but  by  the  constitution  and  laws  of  the  state 
to  which  their  allegiance  has  been  transferred  by  conquest 
or  cession.' 


'  IV  Calvo,  §§  2466,  2469 ;  Amer. 
Ins.  Co.  vs.  Canter,  i  Peters,  542 ; 
Heffter,§  131;  II  Halleck,  pp.  489- 
497- 

'  III  Phillimore,§§  591-593;  Hall, 
§§  205,  206  ;  Dana's  Wheaton,  §  346, 
note  169;  II  Halleck,  pp.  485-489; 
United  States  vs.  Repentigny,  5 
Wallace,  260;  I  Wildman,  p.  162; 
IV Calvo, §§  2466-2477.  "By a  prin- 
ciple of  international  law,  on  a 
transfer  of  territory  by  one  nation 
to  another,  the  political  relations 
between  the  inhabitants  of  the 
ceded  country  and  the  former  gov- 
ernment are  changed,  and  new  ones 
arise  between  them  and  the  new 
government.  The  manner  in  which 
this  is  to  be  effected  is  ordinarily 
the  subject  of  treaty.  The  con- 
tracting parties  have  the  right  to 
contract  to  transfer  and  receive 
respectively  the  allegiance  of  all 
the  native-born  citizens;  but  the 
naturalized  citizens,  who  owe  alle- 
giance purely  statutory,  are,  when 
released  therefrom,  remitted  to 
their  original  status."  —  Tobin  7fs. 
Walkinshaw,  i  McAllister,  186; 
Amer.  Ins.  Co.  vs.  Canter,  i  Peters, 


542.  "  When  New  Mexico  was  con- 
quered by  the  United  States,  it  was 
only  the  allegiance  of  the  people 
that  was  changed  ;  their  relation 
to  each  other  and  their  rights  of 
property  remained  undisturbed." — 
Leitensdorfer  et  al.  vs.  Webb,  20 
Howard,  176.  "On  a  conquest  by 
one  nation  of  another,  and  the  sub- 
sequent surrender  of  the  soil  and 
change  of  sovereignty,  those  of  the 
former  inhabitants  who  do  not  re- 
main and  become  citizens  of  the 
victorious  sovereign,  but,  on  the 
contrary,  adhere  to  their  old  alle- 
giance and  continue  in  the  service 
of  the  vanquished  sovereign,  de- 
prive themselves  of  protection  or 
security  to  their  property,  except  so 
far  as  it  may  be  secured  by  treaty." — 
United  Statest/^.  Repentigny,  5  Wal- 
lace, 211.  "Hence  where,  on  such 
a  conquest,  a  treaty  provided  that 
the  former  inhabitants  who  wished 
to  adhere  in  allegiance  to  their  van- 
quished sovereign  might  sell  their 
property,  provided  they  sold  it  to 
a  certain  class  of  persons  and  with- 
in a  time  named,  the  property,  if 
not  so  sold,  became  abandoned  to 


348  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

Effects  of  Conquest  or  Cession  upon  Municipal  Laws. 
It  is  a  general  rule  of  public  law,  recognized  and  acted  upon 
by  the  United  States,  that  whenever  political  jurisdiction  and 
legislative  power  over  any  territory  are  transferred  from  one  na- 
tion or  sovereign  to  another,  the  municipal  laws  of  the  country 
— that  is,  laws  which  are  intended  for  the  protection  of  private 
rights — continue  in  force  until  abrogated  or  changed  by  the 
new  government  or  sovereign.  By  the  cession  public  property 
passes  from  one  government  to  another,  but  private  property 
remains  as  before,  and  with  it  those  municipal  laws  which  are 
designed  to  secure  its  peaceful  use  and  enjoyment.  As  a 
matter  of  course,  all  laws,  ordinances,  and  regulations  in  con- 
flict with  the  political  character,  institutions,  and  constitution 
of  the  new  government  are  at  once  displaced.  .  .  .  But  with 
respect  to  other  laws  affecting  the  possession,  use,  and  transfer 
of  property,  and  designed  to  secure  good  order  and  peace  in 
the  community,  and  promote  its  health  and  prosperity,  which 
are  of  a  strictly  municipal  character,  the  rule  is  general,  that  a 
change  of  government  leaves  them  in  force  until,  by  direct  ac- 
tion of  the  new  government,  they  are  altered  or  repealed.' 

The  extent  and  amount  of  the  political  changes,  and  the  cir- 
cumstances under  which  they  shall  be  accomplished  ;  whether, 
for  example,  they  shall  be  violent,  and  become  operative  im- 
mediately upon  the  execution  of  the  treaty  of  peace,  or  gradual, 
extending  over  a  considerable  period  of  time,  are  questions 

the  conqueror."— Ibid.     "Citizens  Rec.    Gen.    p.   689;    Hall,    p.   572, 

of  territory  acquired  by  the  United  note;  III  Phillimore,  pp.  86S-871. 
States  as   a  result  of  conquest  or         '  Chicago   and    Pacific    Railway 

cession     have     the     international  Company  •z/i-.  McGlinn,  114  United 

privileges  of  citizenship,  in  respect  States,    542;    Mitchel    vs.    United 

to  extraterritorial  protection,  etc..  States,    9    Peters,    734;    Strother 

from  the  date  of  the  treaty  of  peace  vs.   Lucas,    12     Peters,    410,    436; 

or  of  cession.     The  matter  of  their  American  Insurance  Company,  ot. 

citizenship  or  naturalization,  as  a  Canter,  i  Peters,  542;   II  Halleck, 

question  of  municipal  law,  if  not  pp.  460,  461,  493  ;  Dana's  Wheaton, 

settled  in  the  treaty,  depends  upon  p.  347,  note  169;  Hall,  §§  27-29,  p. 

the  legislation  of  Congress.     The  205;  Vattel,  liv.  i.  chap.  xxi.  §§  261- 

Treatyof  Frankfort.in  1871, author-  265;    Risley,  pp.  165,  166  ;    United 

ized  liberty  of  emigration  from  the  States  vs.  Percheman,  7  Peters,  B>t,\ 

provinces  of  Alsace  and  Lorraine  III    Phillimore,   pp.    862-866;    IV 

until  October  1, 1872."— XIX  Nouv.  Calvo,  §§  2458-2477. 


THE   LAW   OF    WAR  349 

that  depend,  in  part,  upon  the  terms  of  the  treaty  or  the  cir- 
cumstances of  the  conquest,  and,  in  part,  upon  the  differences 
between  the  legal  conceptions  and  political  institutions  of  the 
conquering  and  conquered  states.  In  any  case,  however,  as 
the  laws  of  a  state  must,  in  general,  be  uniform  throughout 
the  entire  extent  of  its  territory,  it  follows  that,  if  marked  dif- 
ferences exist  between  the  laws  in  force  in  the  acquired  prov- 
inces and  those  of  the  new  sovereignty,  such  differences  must 
eventually  be  removed  or  made  to  disappear.  Indeed,  uni- 
formity of  operation  can  be  secured  in  no  other  way. 

If,  however,  the  necessary  changes  be  extensive  and  impor- 
tant, as  would  be  the  case  in  which  a  people  whose  legal  insti- 
tutions were  based  upon  the  Roman  law  passes  under  the 
dominion  of  a  state  whose  constitutional  ideas  are  derived 
from  the  common  law,  every  consideration  of  expediency 
and  justice  would  seem  to  suggest  the  wisdom  and  propriety 
of  effecting  such  changes  in  a  manner  so  gradual  as  to  cause 
a  minimum  of  disturbance  to  existing  institutions.  A  similar 
difificulty  presents  itself  where  territory  in  which  representa- 
tive institutions  are  firmly  established,  and  the  population  of 
which  has  been  accustomed  to  a  large  measure  of  self-govern- 
ment, passes  into  the  dominion  of  a  state  in  which  individual 
rights  are  more  rigidly  restricted,  or  where  representative  in- 
stitutions do  not  exist.  In  this  case  the  assimilation  of  popu- 
lation becomes  considerably  more  difificult  than  in  the  former, 
where  the  changes  caused  by  the  fact  of  conquest  are  all  in 
the  direction  of  liberality  and  tend  to  add  to,  rather  than  to 
detract  from,  the  constitutional  rights  of  individuals.  It  is 
proper  to  remember  in  this  connection,  however,  that  an  in- 
habitant who  has  been  afforded  an  opportunity  to  dispose  of 
his  property  and  withdraw  from  the  ceded  territory,  but  who 
elects  to  remain  there,  and,  by  so  doing,  to  acquire  residence 
and  citizenship  in  the  conquering  state,  must  be  presumed  to 
have  signified  his  willingness  to  accept  such  changes  in  his 
political  status  as  the  new  sovereign  may  see  fit  to  impose.' 

'  For  the  practice  of  Great  Brit-  pp.  162-164;  Hall,  §  205  ;  The  Fol- 
ain  in  this  regard,  see  I  Wildman,      Una,  i  Dodson,  Adm.  Rep.  p.  451 ; 


350      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Responsibility  of  a  State  for  Injury  or  Damage  to  Pri- 
vate Property.  It  has  been  seen  that  the  destruction  of 
private  property,  and  its  taking  for  beUigerent  use,  are  inevi- 
table incidents  of  war;  it  has  also  been  seen  that  the  right  to 
take  and  destroy  is  exercised  by  both  belligerents,  and  upon 
all  property,  whatever  may  be  its  ownership,  which  is  located 
in  the  theatre  of  active  military  operations.  If  the  proper- 
ty of  an  individual  be  appropriated  or  destroyed  by  his  own 
government,  the  question  of  compensation  is,  in  general,  a 
strictly  internal  one,  wdth  which  international  law  has  nothing 
to  do.  If,  on  the  other  hand,  the  property  of  enemies'  sub- 
jects be  taken  or  destroyed  by  an  invading  army,  such  appro- 
priation or  destruction  is  regulated  by  the  rules  and  usages 
of  war;  this  is  seen  in  the  requirements  of  the  law  of  nations 
in  respect  to  occupation  and  use  of  real  property,  the  capture 
of  public  or  private  property  which  is  useful  to  the  belliger- 
ent in  the  prosecution  of  his  military  operations,  the  taking 
of  private  property  by  way  of  requisition  and  contribution, 
and  the  immunity  from  interference  which  is  accorded  to 
property  devoted  to  religious,  charitable,  or  educational  uses. 
But  the  laws  of  war  are  silent,  however,  where  the  property 
taken  by  a  belligerent  is  owned  by  his  own  subjects,  or  neu- 
trals, or  by  subjects  of  the  enemy  who  have  been  permitted 
to  remain  in  the  country  after  the  outbreak  of  hostilities ; 
they  are  also  silent  as  to  the  right  of  an  individual  to  com- 
pensation for  property  destroyed  as  a  direct  consequence  of 
military  operations,  as  by  the  fire  of  artillery  or  the  move- 
ments of  armies  in  battle. 

In  determining  the  responsibility  of  a  state  in  this  respect, 
the  question  must  be  regarded  from  several  points  of  view, 
and  the  character  of  the  war,  as  internal  or  external,  the  own- 
ership of  the  property  destroyed  or  appropriated,  and  the 
nature  and  cause  of  the  injury  or  appropriation  itself  must  all 

IV  Calvo,  §§  2466-2469.     For  the  100;  Dana's  Wheaton,  §  347,  note 

practice  in  the  United  States,  see  169;  II  Halleck,  pp.  484-511;   for 

IV  Calvo,  §§  2468,  2469 ;   Inglis  w.  the    practice    of    France,  see    IV 

Sailors'    Snug   Harbor,  3    Peters,  Calvo,  §§  2472,  2473. 


THE   LAW   OF   WAR  35 1 

be  considered.  Regard  must  be  had,  also,  as  to  whether  the 
injury  consists  in  a  taking  of  private  property  for  public  use, 
as  where  lands  or  buildings  are  appropriated  for  the  construc- 
tion of  defensive  works,  or  supplies  are  taken  for  public  use  ; 
or  as  to  whether  such  injury  or  destruction  is  due  to  acts 
of  war,  or  is  the  direct  and  inevitable  consequence  of  hostile 
operations,  as  where  houses  or  buildings  are  destroyed  dur- 
ing a  bombardment,  or  where  standing  timber  is  cut  down  by 
the  fire  of  artillery  or  is  taken  for  the  construction  of  field 
intrenchments,  or  where  crops  are  trampled  down  and  de- 
stroyed by  the  movements  of  troops  during  the  progress  of  a 
battle. 

In  respect  to  the  question  of  ownership,  where  the  property 
is  taken  by  a  government  from  individuals  residing  within  its 
own  territory,  as  it  is  the  duty  of  the  state  to  protect  all  pri- 
vate property  within  its  territorial  limits,  without  regard  to 
its  ownership,  the  modern  tendency  is  to  obliterate  the  dis- 
tinction between  citizens  and  aliens,  in  this  regard,  and  base 
the  compensation,  if  any  be  made,  upon  the  circumstances 
attending  the  appropriation  or  destruction  of  the  property  it- 
self. If  such  appropriation  of  private  property  is  for  the  pub- 
lic use,  or  is  made  with  a  view  to  secure  the  public  defence, 
the  property  so  taken  is,  as  a  rule,  made  the  subject  of  com- 
pensatory damages.  In  no  case,  however,  unless  it  be  made 
the  subject  of  treaty  stipulations,  is  any  greater  protection 
afforded  to  the  property  of  aliens  than  is  afforded  to  the  citi- 
zens or  subjects  of  the  state  in  whose  behalf  the  appropriation 
is  made;  nor  is  the  rule  of  compensation  applied  more  liber- 
ally in  the  one  case  than  in  the  other.'     If,  on  the  other  hand, 

1  The  method  in  which  payment  empowered  by  law  to  ascertain  the 
is  to  be  made  for  private  property  damage  inflicted ;  if  no  such  juris- 
thus  taken  for  the  public  use  is  diction  is  conferred  upon  any  of 
regulated  and  determined  by  the  the  courts  of  a  state,  the  case  may 
municipal  law  of  the  state  by  whom  be  presented,  by  way  of  petition,  to 
the  property  has  been  appropriated,  the  supreme  legislative  body  or  to 
If  particular  courts  are  given  juris-  the  sovereign.  In  cases  of  alien 
diction  over  such  cases,  claims  for  ownership,  if  aliens  are  placed  upon 
property  thus  appropriated  must  the  same  footing  as  citizens  in  re- 
be  brought  before  the  tribunals  spect  to  the  institution  of  suits  of 


352 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


the  damage  or  destruction  is  clearly  due  to  an  act  of  war,  or 
to  strict  military  necessity,  or  is  an  inevitable  consequence  of 
warlike  operations,  the  loss  lies  where  it  falls,  and  the  indi- 
vidual owner  is  not  compensated  save  as  an  act  of  grace  or 
charity/  In  this  case  no  distinction  is  made  between  citizens 
and  aliens,  or  other  foreign  residents ;  and  it  matters  not  by 
whom  the  injury  is  inflicted,  whether  by  the  enemy  or  by  the 
troops  of  the  state  of  the  injured  party/* 


this  kind,  their  remedy  is  the  same 
as  that  of  the  citizen ;  where  the 
local  law  places  them  in  a  position 
of  disadvantage,  or  where  they  are 
discriminated  against,  their  claim 
may  be  made  the  subject  of  diplr>- 
matic  presentation.  See,  also,  Gro- 
tius,  Viv.  iii.  chap.  xx.  §  8 ;  Vattel, 
liv.  iii.  chap.  xv.  §  232  ;  II  Dig.  Int. 
Law,  §§  223-225. 

'  The  rule  in  this  matter  is  well 
stated  by  Vattel,  who  says  that 
"these  are  merely  accidents;  they 
are  misfortunes  which  chance  deals 
out  to  the  proprietors  on  whom 
they  happen  to  fall.  The  sovereign, 
indeed,  ought  to  show  an  equita- 
ble regard  for  the  sufferers,  if  the 
situation  of  his  afifairs  will  admit 
of  it,  but  no  action  lies  against  the 
state  for  misfortunes  of  this  nat- 
ure, for  losses  which  she  has  oc- 
casioned, not  wilfully,  but  through 
necessity,  and  by  mere  accident,  in 
the  exertion  of  her  rights.  The 
same  may  be  said  of  damage  caused 
by  the  enemy.  All  the  subjects 
are  exposed  to  such  damages,  and 
woe  to  him  on  whom  they  fall. 
The  members  of  a  society  may 
well  encounter  such  risk  of  prop- 
erty, since  they  encounter  a  similar 
risk  of  life  itself.  Were  the  state 
to  indemnify  all  those  whose  prop- 
erty is  injured  in  this  manner,  the 
public  finances  would  soon  be  ex- 
hausted, and  every  individual  in 
the  state  would  be  obliged  to  con- 
tribute his  share  in  due  proportion 


— a thingutterly impracticable.  Be- 
sides, these  indemnifications  would 
be  liable  to  a  thousand  abuses,  and 
there  would  be  no  end  of  the  par- 
ticulars. It  is  therefore  to  be  pre- 
sumed that  no  such  thing  was  ever 
intended  by  those  who  united  to 
form  a  society."  —  Vattel,  liv.  iii. 
chap.  XV.  §  232. 

-  "The  property  r  alien  residents, 
like  that  of  natives  of  the  coun- 
try, when  '  in  the  track  of  war,' 
is  subject  to  war's  casualties,  and 
whatever  in  front  of  the  advancing 
forces  that  either  impedes  or  may 
give  them  aid  when  appropriated, 
or  which,  if  left  unmolested  in  their 
rear,  might  afford  aid  and  comfort 
to  the  enemy,  may  be  taken  or  de- 
stroyed by  the  armies  of  either  of 
the  belligerents;  and  no  liability 
whatever  is  understood  to  attach 
to  the  government  of  the  country 
whose  flag  that  army  bears  and 
whose  battles  it  may  be  fighting; 
and,  when  actual,  positive  war  is  in 
progress,  the  commander  of  the 
armies  in  the  field  must  be  the 
judge  of  the  existing  exigencies 
and  necessities  which  dictate  such 
action.  This  is  believed  to  be  the 
universal  rule  at  the  present  day; 
it  is  that  which  has  been  followed 
by  the  governments  of  Europe  in 
recent  wars." — II  Dig.  Int.  Law,  § 
224,  p.  587,  §  225,  p.  598;  I  Opin. 
Att.-Gen.  p.  255;  Ibid.  p.  269;  XII 
Ibid.  p.  21  ;  Hall,  pp.  218,  219,  note; 
Bluntschli,  §§  652,  661 ;   Heflfter,  § 


THE  LAW   OF  WAR  353 

The  rule  above  stated,  however,  is  subject  to  the  qualifica- 
tion that  the  injury  complained  of  must  have  been  inflicted 
during  hostilities  carried  on  in  accordance  with  the  generally 
recognized  rules  of  civilized  war.'  The  belligerent  parties  to 
a  particular  war,  whether  the  war  be  external  or  internal  in 
character,  are  presumed  to  follow  the  laws  of  war  in  the  con- 
duct of  their  military  operations.  If  a  belligerent  fails  to 
do  so,  however,  the  enemy,  by  a  resort  to  acts  of  retaliation, 
may  compel  him  to  observe  the  rules  of  civilized  warfare. 
If  neutral  states  or  their  subjects  suffer  injury  as  a  conse- 
quence of  such  failure,  the  injury  may  be  redressed  in  the 
diplomatic  way,  or,  if  sufficiently  serious,  may  authorize  a 
resort  to  forcible  measures  of  redress. 

Responsibility  of  a  State  for  Injuries  Inflicted  during 
Internal  Wars.  Where  property  of  individuals,  whether 
citizens  or  aliens,  is  injured  during  the  progress  of  an  insur- 
rection or  rebellion,  a  similar  rule  of  responsibility  prevails. 
In  this  connection,  however,  a  distinction  exists  between  the 
destruction  of  property  due  to  lawlessness  or  mob  violence 
and  injury  or  destruction  caused  by  insurgents  in  the  prosecu- 
tion of  regular  military  operations.  Foreigners  who  become 
resident  in  a  particular  state,  or  who  own  property  therein, 
acquire  such  residence  or  ownership  with  full  knowledge  that 
internal  disorders  are  likely  to  occur,  and  that,  in  consequence 
of  such  disorders,  property  may  be  injured  or  destroyed,  either 
by  those  who  are  engaged  in  violating  the  laws  or  by  the 
government  itself  in  its  endeavor  to  restore  order.  "The 
assembling  of  mobs  happens  in  all  countries  ;  popular  vio- 
lence occasionally  breaks  out  everywhere,  setting  law  at  de- 
fiance, trampling  on  the  rights  of  citizens  and  private  men, 
and  sometimes  on  those  of  public  officers  and  the  agents 
of  foreign  governments  especially  entitled  to  protection.     In 

133;   Kliiber,  §  256;    II    Dig.  Int.  p.  235  ;  Love  w.  The  United  States, 

Law,  §§  223-225;  Illlbid.  §  353;  II  29  Court   of  Claims   Reports   (U. 

Phillimore,  p.  7;  Mitchell  vs.  Har-  S.),  pp.  332.  347- 

mony,  13  Howard,  115;  The  Wi7l-  '  II    Digest    International  Law, 

mm  Baggaley,  5  Wallace,  377 ;   II  §  225  ;  III  Ibid.  §§  347-349- 
Twiss,  §§  64-66 ;  I  Opin.  Att.-Gen. 

23 


354  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

these  cases  public  faith  and  national  honor  require  not  only 
that  such  outrages  should  be  disavowed,  but  also  that  the 
perpetrators  of  them  should  be  punished  wherever  it  is 
possible  to  bring  them  to  justice;  and,  further,  that  full  satis- 
faction should  be  made  in  cases  in  which  a  duty  rests  with 
the  government,  according  to  the  general  principles  of  law, 
public  faith,  and  the  obligations  of  treaties.'" 

When,  however,  the  internal  disorder  attains  the  propor- 
tions of  an  organized  rebellion,  and  the  supreme  government 
resorts  to  warlike  methods  with  a  view  to  its  suppression,  the 
operations  undertaken  to  restore  the  authority  and  supremacy 
of  the  central  government  are  carried  on  in  accordance  with 
the  laws  of  war,  and  the  parties,  as  they  occupy  the  status  of 
belligerents,  become  charged  with  the  rights,  duties,  and  re- 
sponsibilities of  belligerents  as  determined  by  the  rules  of 
international  law.° 


References.  The  student  will  find  the  subject  of  war  most  fully  treated 
in  the  works  of  Halleck,  Risley,  and  Phillimore  in  English,  and  in  those 
of  Calvo,  Pradier-Fodere,  Guelle,  and  Ortolan  in  French.  For  discussions 
of  the  definition,  justification,  and  causes  of  war,  see  also  Vattel,  liv.  iii. 
chaps,  i.  and  iii. ;  I  Halleck,  chaps,  xv.  and  xvi. ;  Heffter,  §§  113-119;  IV 
Calvo,  §§  1 860-1 898;  II  Twiss,  §§  22-41;  VI  Pradier-Fodere,  §§  2650- 
2670;  III  Phillimore,  pp.  i-i 7,  85-89;  Bluntschli,  §§  510-536  ;  II  Fergu- 
son, §§  169-172;  Hall,  §§  123-126;  Lawrence,  "  International  Law,"  §  155; 
Woolsey,  §§  114-117;  Creasy,  §§  380-394.  For  the  declaration  of  war 
and  its  effects,  see  Vattel,  liv.  iii.  chap,  iv.;  Owen,  "  Declaration  of  War  "  ; 
Bluntschli,  §§  510-536;  II  Ferguson,  §§  173-175;  IV  Calvo,  §§  1899-2032.- 
Ill  Phillimore,  pp.  85-149;  III  Digest  of  International  Law,  §§  333-337^, 

1  "The  rule  is  not  to  be  construed  fare  are  recognized  as  legitimate." 

as  proclaiming  immunity  to  a  bel-  — II  Dig.  Int.  Law,  §  225.     II  Ibid, 

ligerent   for  every  outrage  which  §  226;  t  Calvo,  §  205;   Hall,  §  65; 

may  be  perpetrated  by  those  in  its  Bluntschli,  §  380;  Kliiber,  §  79 ;  I 

service,   simply  because    they  oc-  Dig.  Int.  Law,  §§  46,  67. 

curred  during  the  time  and  upon  Mil  Calvo,  §§  1280- 1297;  II  Dig. 

the    theatre    in    which   hostilities  Int.    Law,    §§   223-225 ;    Revue    de 

were   prosecuted.      The    injury,  it  Droit  International,  vol.  i.   p.  41?; 

may  be  conceded,  must  result  from  Bluntschli,  §  380,  bis;  Hall,  §  65; 

such    military    or   naval    measures  Vattel,  liv.  iii.,   chap,  xviii.  §§  292- 

as  by  the   code  of   civilized   war-  295. 


THE   LAW  OF  WAR  355 

347-351;  VI  Pradier-Fodere,  §§  2670-2720;  II  Ortolan,  pp.  11-23; 
Heffter,  §§120-123;  Risley,  "  Law  of  War  "  ;  Guelle,  pp.  36-66  ;  Bluntschli, 
§§  510-536;  I  Halleck,  chap.  xvii. ;  Hall,  §§  123-126;  II  Twiss,  §§  31-41- 
For  the  rules  of  war  on  land,  see  Vattel,  liv.  iii.  chaps,  v.  viii.-xiii. ;  II 
Halleck,  chaps,  xviii.-xx. ;  Risley,  "  The  Law  of  War  "  ;  IV  Calvo,  §§  2033- 
2065;  VI  Pradier-Fodere,  §§  2721-2794;  VII  Ibid.  §§  2795-2880;  Hall, 
§§  15-18,  127-135;  HefTter,  §§  537-643  ;  Dr.  Lieber's  "  Instructions  for  the 
Government  of  the  Armies  of  the  United  States,"  Appendix  A;  "The 
Rules  of  War  adopted  by  the  Institute  of  International  Law,  at  its  Ses- 
sion at  Oxford  in  1880,"  Appendix  F  ;  "The  Rules  and  Usages  of  War  on 
Land  adopted  by  the  International  Peace  Conference  at  The  Hague  in 
1899,"  Appendix  E ;  Lawrence,  "  International  Law,"  §§  169-174;  II  Twiss, 
§§  62-71  ;  III  Digest  International  Law,  §§  347-351  :  "  Precis  des  Lois  de 
Guerre,"  J.  Guelle.  For  the  treatment  of  property  on  land,  see  Vattel, 
liv.  iii.  chap.  v.  §§  69-77;  Ibid.  chap.  ix.  §§  160-173;  Heffter,  §§  537-556, 
644-663;  II  Halleck, chap,  xxi.;  Hall,  §§  136-142  ;  IV  Calvo,  §§  2199-2293  ; 
Dana's  Wheaton,  §  346,  note  169;  VI  Pradier-Fodere,  §§  2994-3065;  II 
Twiss,  §§  62-71.  For  the  rules  of  temporary  occupation,  see  Hall,  §§  153- 
161  ;  VII  Pradier-Fodere,  §§  2939-3065  ;  Lawrence,  "  International  Law," 
§§  200-204 ;  De  Martens,  "  Precis,"  §§  280-282  ;  Kliiber,  §  265  ;  Bluntschli, 
§§644-663;  II  Ferguson,  §§  187,  269;  Heffter,  §§  537-556,  644-663;  I 
Digest  International  Law,  §  3;  III  Ibid.  §  339;  II  Halleck,  chaps, 
xxxiii.  xxxiv. ;  Snow,  pp.  109-113;  Manning,  pp.  188,  189;  and  Dana's 
Wheaton,  §  346,  note  169.  For  requisitions  and  contributions,  see  VII 
Pradier-Fodere,  §§  3020-3065  ;  Vattel,  liv.  iii.  chap.  ix.  §  165  ;  Bluntschli, 
§§  653-656 ;  Lawrence,  "  International  Law,"  §  204 ;  IV  Calvo,  §§  2231-2293 ; 
II  Guelle,  pp.  176-238;  Dana's  Wheaton,  §  346;  III  Digest  International 
Law,  §  339;  III  F.  De  Martens,  §§  263,  264;  II  Halleck,  pp.  109-114. 
For  the  subject  of  conquest,  see  "  Le  Droit  de  Conquete,"  by  M.  L.  A.  de 
Montluc,  vol.  iii.  "  Revue  de  Droit  International,"  p.  551  ;  v.  Ibid.  p.  581 ; 
Hall,  §§  204-206;  Dana's  Wheaton,  §  346,  note  169;  IV  Calvo,  §§  2453- 
2490;  I  Digest  International  Law,  §§  3,  4,  11;  III  Ibid.  §  354;  Kliiber, 
§§  255-259;  II  De  Martens,  "Precis,"  §§279,  300,  333;  HefTter,  §§  133,179; 
II  Halleck,  pp.  480-509;  see,  also,  "  La  Guerre  Actuelle,"  by  C  F.  Rolin- 
Jacquemyn,  in  vol.  ii.  "  Revue  de  Droit  International,"  pp.  643-718;  iii. 
Ibid.  pp.  288-384 ;  iv.  Ibid.  p.  481 ;  "  L'Enfantement  du  Droit  par  Guerre," 
by  H.  Brocher  de  la  Flechere,  vol.  x.  "  Revue  de  Droit  International," 
p.  473;  xii.  Ibid.  pp.  60,  206;  "The  Administration  of  Alsace-Lorraine, 
1 870-1 87 1,"  by  Dr.  Edward  Loening,  vol.  iv.  "  Revue  de  Droit  Interna- 
tional," p.  622;  V.  Ibid.  p.  69;  "Hostilities  Without  Declaration,"  by 
M.  Feraud-Giraud,  vol.  xvii.  "  Revue  de  Droit  International,"  pp.  19-49. 
For  attempts  to  codify  the  laws  and  usages  of  war,  see  the  rules  sug- 
gested by  H.  Brocher,  vol.  iv.  "  Revue  de  Droit  International,"  pp.  25, 


356  THE    ELEMENTS    OF   INTERNATIONAL   LAW 

381,  406;  V.  Ibid.  pp.  321-351,  566-577;  for  those  of  the  Institute  of 
International  Law,  see  "  Les  Actes  de  la  Conference  de  Bruxelles,  1874," 
vol.  vii.  "  Revue  de  Droit  International,"  pp.  438-461 ;  ix.  Ibid.  p.  133 ;  for 
the  code  proposed  by  M.  Ernest  Lehr,  "  Les  Lois  de  la  Guerre  sur  Terra 
et  sur  Mer,"  see  vol.  xxv.  "  Revue  de  Droit  International,"  pp.  321-337  ; 
for  the  similar  project  of  Dr.  Geffcken,  see  vol.  xxvi.  Ibid.  p.  596.  For 
proposals  respecting  general  or  proportional  disarmament,  and  the  set- 
tlement of  international  disputes  without  a  resort  to  war,  see  "The  Ulti- 
mate Problem  of  International  Jurisprudence,"  by  Professor  James  Lori- 
mer,  II  Lorimer,  pp.  183-298 ;  "  Political  and  Legal  Remedies  for  War," 
by  Professor  Sheldon  Amos ;  "The  Evolution  of  Peace,"  by  Professor  T.  J. 
Lawrence ;  Lawrence," Essays  in  Modern  International  Law,"  pp.  234-278 ; 
"Propositions  to  Abate  War,"  by  Sir  Henry  Sumner  Maine,  "International 
Law,"  pp.  207-228  ;  see,  also,  "The  Declaration  of  the  International  Peace 
Conference  at  The  Hague,"  in  respect  to  the  diminution  of  military  ex- 
penditure, and  "The  Convention  for  the  Peaceable  Adjustment  of  Inter- 
national Disputes  adopted  by  the  Peace  Conference  at  The  Hague,  on 
July  29,  1899." 


CHAPTER   XI 

MARITIME    CAPTURE  :     PRIZE  :     THE     JURISDICTION    AND 
PROCEDURE    OF    PRIZE-COURTS 

Tendency  of  the  Rules  of  Maritime  War.  The  rules  of 
war  regarding  the  treatment  of  private  property  on  land  have 
been  characterized  by  a  marked  and  constant  improvement 
since  the  beginning  of  modern  history.  To  appreciate  this 
change,  it  is  only  necessary  to  compare  the  laws  of  war  on 
land,  as  they  are  now  understood,  with  the  barbarous  prac- 
tices that  prevailed  during  the  Thirty  Years'  War,  or  even 
with  the  corresponding  usages  during  the  Napoleonic  wars 
at  the  beginning  of  this  century.  The  tendency  has  been 
to  give  to  war  on  land  the  character  of  an  armed  contest 
between  belligerent  governments,  restricting  its  operations 
and  effects  to  the  armed  forces  engaged  on  either  side,  and 
exempting  private  persons  and  private  property  from  its 
hardships  wherever  such  exemption  has  been  possible.  There 
has  been  no  such  general  improvement  in  the  laws  having 
to  do  with  the  treatment  of  private  property  at  sea,  and  the 
rules  regulating  maritime  capture  have  advanced  but  little 
since  they  were  codified,  more  than  eight  hundred  years  ago, 
in  the  Consolato  del  Mare.  As  different  states  have,  at  dif- 
ferent times,  obtained  undue  preponderance  at  sea,  their  inva- 
riable tendency  has  been  to  shape  the  rules  of  maritime 
capture  rather  in  accordance  with  their  views  of  temporary 
policy  and  self-interest  than  in  accordance  with  the  rights  of 
neutrals  and  the  demands  of  humanity  and  civilization.  From 
time  to  time  proposals  have  been  made  to  exempt  from 
capture  at  sea  all  private  property  not  contraband  of  war. 
These  proposals  have  never  been  favorably  received,  however, 


JD< 


THE   ELEMENTS  OF   INTERNATIONAL  LAW 


and  there  is  no  present  prospect  of  the  general  discontinuance 
of  a  practice  as  unjust  in  principle  as  it  is  inefficient  as  a 
means  of  redressing  an  international  wrong. 

The  Right  of  Maritime  Capture.  Of  the  right  to  capt- 
ure private  property  at  sea,  which  has  been  recognized  from 
the  earliest  times,  there  can  be  no  serious  doubt ;  no  prin- 
ciple, indeed,  is  better  established  at  international  law.  As 
to  the  justice  of  the  practice,  however,  and  as  to  its  efficiency 
as  a  means  of  injuring  an  enemy,  there  is  a  wide  divergence 
of  opinion.  It  is  defended  on  the  ground  that  a  belligerent 
has  the  same  right  to  injure  his  enemy  by  crippling  and 
destroying  his  maritime  commerce  as  by  conducting  opera- 
tions against  his  armies  on  land  ;  the  destruction  of  his  com- 
merce operates  less  directly,  it  is  true,  but  in  some  cases 
it  redresses  as  decisively  the  wrong  for  which  the  war  was 
undertaken  as  do  victories  gained  over  his  armies  and  fleets ; 
at  the  same  time,  as  property  is  captured  or  destroyed,  instead 
of  human  life,  the  purpose  of  the  war  is  accomplished  with 
greater  humanity  in  the  one  case  than  in  the  other.  It  is 
also  contended  that,  by  attacking  a  single  powerful  interest — 
maritime  commerce — in  which  large  amounts  of  capital  are 
invested  and  large  numbers  of  persons  employed,  a  consider- 
able influence,  in  the  interest  of  peace,  is  brought  to  bear 
upon  the  government  of  the  enemy.  It  cannot  be  doubted 
that,  in  former  times,  these  arguments  were  considerably  more 
forcible  than  they  are  at  present.  Maritime  commerce  now 
belongs  to  the  world  and  to  humanity  at  large,  and  not,  as 
formerly,  to  a  state  or  to  several  states,  and  causes  which 
operate  to  injure  the  commerce  of  a  single  state  operate,  with 
equal  power,  to  injure  not  only  the  commercial  interests  but 
the  material  well-being  of  the  entire  civilized  world,  and  so 
to  inflict  injury  upon  states  which  are  in  no  sense  parties  to 
a  particular  war.  Moreover,  as  peace  is  now  the  rule  and  war 
the  exception,  the  effects  of  war  should  be  restricted,  more 
rigidly  than  ever  before,  to  the  nations  directly  concerned  in 
its  operations,  either  as  belligerents  or  allies ;  and  other  states, 
not  parties   to   the   controversy,  should   be    made  to  suffer 


MARITIME   CAPTURE  359' 

the  least  possible  inconvenience  in  consequence  of  its  exist- 
ence.* 

Position  of  the  United  States.  The  position  occupied  by  the 
United  States  in  this  regard,  since  it  became  an  independent 
member  of  the  family  of  nations,  has  been  altogether  credit- 
able ;  its  influence  has  been  steadily  exerted  in  behalf  of  the 
extension  of  the  rights  and  immunities  of  neutrals,  and  it  has 
constantly  adhered  to  and  advocated  the  complete  immunity 
of  private  property,  not  contraband  of  war,  from  capture  or 
destruction  on  the  high  seas  in  time  of  public  war.  It  declined 
to  become  a  party  to  the  Declaration  of  Paris,  for  reasons  which 
were  satisfactory  to  itself  and  consistent  with  its  established 
policy  in  respect  to  maritime  warfare,  but  signified  its  entire 
willingness  to  become  a  party  to  that  convention  on  the  single 
condition  that  all  private  property  at  sea,  not  contraband  of 
war,  should  be  exempt  from  the  operation  of  the  right  of  mari- 
time capture."  As  a  further  evidence  of  its  disposition  in  this 
regard,  the  United  States,  at  the  close  of  the  war  of  1898  with 
Spain,  by  a  formal  enactment  of  Congress,  abolished  the  prac- 
tice of  distributing  prize-money  among  the  crews  of  capturing 
vessels,  and  prohibited  the  award  of  bounty,  or  head-money,  to 
the  officers  and  crews  of  public  armed  vessels,  for  the  capture 
or  destruction  of  public  armed  ships  of  the  enemy.  ^ 

'  Vattel,  liv.  iii.  chap.  viii.  §§  475,  note  223;  Woolsey,  §  128;  II 
195,  196;  Ibid.  chap.  xv.  §  229;  Ortolan,  pp.  38, 69. 
Kail,  pp.  445-447,  note;  Dana's  ^  The  prohibition  here  referred 
Wheaton,  §  355,  note  171  ;  Law-  to  was  accomplished  by  the  pas- 
rence's  Wheaton,  p.  628,  note  192;  sage  of  the  following  enactment: 
II  Ortolan,  pp.  35-56;  II  Twiss,  §§  "All  provisions  of  law  authorizing 
72-77;  II  Ferguson,  §§  198-201  ;  the  distribution  among  captors  of 
IV  Calvo,  §§  2294-2410;  II  Lorimer,  the  whole  or  any  portion  of  the 
pp.  94-1 14  ;  Bluntschli,  §§  664,  665  ;  proceeds  of  vessels,  or  any  property 
Manning,  pp.  183,  184,  note;  Wool-  hereafter  captured,  condemned  as 
sey,  §  147;  Lawrence,  Int.  Law,  §§  prize,  or  providing  for  the  payment 
206,  207,  216,  217;  III  Dig.  Int.  of  bounty  for  the  sinking  or  de- 
Law,  §§  342-346 ;  Amos,  Political  struction  of  vessels  of  the  enemy 
and  Legal  Remedies  for  War,  pp.  hereafter  occurring  in  time  of 
196-215,  note.  war,  are  hereby  repealed." — Act  of 

*  III  Dig.  Int.  Law,  §  342  ;  Upton,  March  3,  1899,  30  Stat,  at  Large, 
Maritime  Warfare,  pp.  179-185;  p.  1007.  "The  allowance  of  prize- 
Dana's  Wheaton,  §§  358,  note  173,  money  to  public  armed  vessels  is 


360  THE  ELEMENTS  OF   INTERNATIONAL  LAW 

Forces  Employed  in  Maritime  War.  The  forces  that  may 
be  employed  in  naval  operations  have  already  been  described, 
and  may  consist  of  the  regular  naval  establishment  of  the  bel- 
ligerent state,  supplemented  by  such  maritime  volunteer  or 
militia  forces  as  may  be  deemed  necessary  by  the  state  which 
employs  them.  Unless  the  right  to  use  that  species  of  force 
has  been  formally  abandoned,  or  prohibited  by  the  stipulations 
of  treaties,  a  state  may  also  make  use  of  privateers. 

Captures,  where  made.  In  addition  to  the  operations  di- 
rected against  the  naval  power  of  the  enemy,  and  their  em- 
ployment in  the  attack  or  defence  of  fortified  places  on  the 
coasts  of  the  several  belligerents,  an  important  part  of  the 
duty  of  the  naval  forces  of  a  state,  in  time  of  war,  consists  in 
the  exercise  of  the  right  of  search,  in  the  establishment  and 
maintenance  of  blockades,  and  in  harassing  the  enemy's  com- 
merce by  the  capture  or  destruction  of  his  merchant  ships 
and  their  cargoes  on  the  high  seas.  No  such  captures  are  law- 
ful, or  can  be  made,  however,  save  with  the  express  authoriza- 
tion of  the  captors'  state  ;  the  making  of  captures  without  such 
governmental  authorization  constituting  the  offence  of  piracy. 
Captures  may  be  made  on  the  high  seas,  or  within  the  terri- 
torial waters  of  either  belligerent.'  Under  no  circumstances, 
however,  can  they  be  lawfully  made  in  neutral  waters ;  such 

of  relatively  recent  origin  ;  it  was  is  lawful  to  take  her  and  subject 
allowed  by  the  Dutch  in  1702,  and  her  to  the  examination  and  adju- 
by  the  French  in  1692." — IV  Dod-  dication  of  the  courts." — Talbot  w. 
son,  Adm.  Rep.  p.  316,  note.  Seeman,  i  Cranch,  i.  "The  capt- 
'  Thtjoscp/i,  I  Gallison,  545;  the  ure  of  a  neutral  ship  having  en- 
Grotms,  9  Cranch,  368;  the  //<?r-  emy's  property  on  board  is  a 
ciiles,i  Dodson,  Adm.  Rep.  p.  363;  strictly  justifiable  exercise  of  the 
II  Ortolan,  p.  57;  III  Phillimore,  rights  of  war.  It  is  no  wrong  done 
§§  347-349;  Hall,  §§  270-274;  III  to  the  neutral,  even  though  the 
Dig.  Int.  Law,  §§341-346;  IVCalvo,  voyage  be  thereby  defeated.  The 
§§  2310-2315;  Upton,  p.  190.  "It  captors  are  not  therefore  answer- 
is  a  universal  principle,  which  ap-  able  /;/  poEnam  to  the  neutral  for 
plies  to  those  engaged  in  a  partial  the  losses  which  he  may  sustain 
as  well  as  to  those  engaged  in  a  by  a  lawful  exercise  of  belligerent 
general  war,  that  where  there  is  rights.  It  is  the  misfortune  of  the 
probable  cause  to  believe  the  ves-  neutral  and  not  the  fault  of  the 
sel  met  with  at  sea  is  in  the  con-  belligerent." — The  Anfoma  Johan- 
dition  of  one  liable  to  capture,  it  na,  i  Wheaton,  159. 


MARITIME   CAPTURE  361 

captures  being  unlawful,  and  prizes  thus  taken  must  be  re- 
stored to  their  owners,  with  suitable  apology  and  reparation 
to  the  neutral  government  whose  territorial  sovereignty  has 
been  invaded.' 

Prize.  The  term  "  prize  "  is  applied  to  all  captures  of  prop- 
erty made  at  sea,  or  in  the  territorial  waters  of  a  belligerent, 
in  time  of  war;  it  corresponds  to  the  term  "booty,"  which  is 
applied  to  similar  captures  of  property  on  land.'^  As  the  capt- 
ure is  made  on  its  authority  and  upon  its  responsibility,  the 
title  to  the  captured  property  first  vests  in  the  captor's  gov- 
ernment, and  its  further  disposal  is  regulated  by  its  municipal 
law.  It  may  therefore  make  such  disposition  of  its  prize  as 
it  deems  best ;  it  may  convert  it  to  its  own  use,  or  cause 
it  to  be  destroyed  or  sold ;  and  it  may  distribute  the  whole 
or  a  part  of  the  proceeds  of  the  sale  among  the  captors,  in  ac- 
cordance with  the  provisions  of  its  municipal  law.' 

There  has  been  some  difference  of  opinion  as  to  the  precise 
instant  when  the  title  to  a  prize  passes  from  the  original  owner 
and  vests  in  the  captor's  government.  Three  rules  have  been 
applied:  i.  The  twenty-four-hour  r?//^,  based  upon  twenty-four 
hours  of  secure  possession  on  the  part  of  the  captor ;  2.  The 
rule  of  perjioctatio)i,a.Q(:oxdmg  to  which  the  prize  must  have 


'  See  the  title  "  Neutral  Rights  "  lace,  266  ;  the  Anne,  3  Wheaton, 

in  the  chapter  entitled  "Neutral-  435;    III    Phillimore,   §§  349-355; 

ity."     "  If  a  ship  or  cargo  is  enem\r  IV    Calvo,   §§    2654-2667;    Upton, 

property,  or  if  either  be  otherwise  Maritime    Warfare,   pp.    198-200; 

liable  to  condemnation,  the  circum-  the    Twee  Gebroeders,  3  Robinson, 

stance  tnat  the  vessel  at  the  time  Adm.  Rep.  pp.  162,  164;  the  V^-on; 

of  the  capture  was  in  neutral  waters  Anna  Katharina,   5    Rob.  15;  the 

would  not,  by  itself,  avail  the  claim-  Anna,  5  Ibid.  373. 
ants  in  a  prize-court.  It  might  con-         ^  Vattel,  liv.  iii.  chap.  xii.  §  196; 

stitute  a  ground  of  claim  by  the  Dana's  Wheaton,  §  359;  II  Halleck, 

neutral    power,    whose    territories  p.  115  ;  Hall,  §  149;  III  Phillimore, 

had  suffered  trespass,  for  apology  §  347 ;  Risley,  p.  144 ;  V  Calvo,  §§ 

or  indemnity.     But  neither  an  en-  3005,  3009. 

emy  nor  a  neutral  acting  the  part         ^  Hall,  §   150;  III   Phillimore,  § 

of  an  enemy  can  demand  restitu-  356;  the  Felicity,  2  Dodson,  Adm. 

tion  of  captured   property  on  the  Rep.  pp.  381,  386  ;  X.\\&  Acteon,  Ibid, 

sole  ground  of  capture  in  neutral  p.    52 ;    Dana's-  Wheaton,    §    388, 

waters." — The  Sir   IVilliani  Peel,  note  186,  par.  v.;  V  Calvo,  §§  3010, 

5  Wallace,  517;  the  Adela,  6  Wal-  301 1. 


362  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

been  in  possession  of  the  captor  during  the  period  between 
sun  and  sun;  3.  TJie  rule  of  cessation  of  resistance,  by  which 
the  title  is  held  to  pass  to  the  captor  when  armed  resistance 
ceases  and  the  flag  is  struck  or  a  voluntary  surrender  Is  made. 
The  last  rule  is  now  the  one  most  generally  accepted.' 

The  title  to  captured  property,  since  it  is  acquired  by  an  act 
of  force,  is  inchoate  and  incomplete  until  it  has  been  taken 
before  a  prize-court  of  the  captor's  state  and  the  legality  and 
regularity  of  its  capture  have  been  authoritatively  determined. 
Until  such  adjudication  has  been  had,  the  right  of  property  is 
in  abeyance,  and  the  title  vests  in  the  captor's  government,  in 
trust  for  the  benefit  of  those  who  may  ultimately  become  en- 
titled to  share  in  its  distribution.' 

Duty  of  Captor :  Prize-Crews.  It  is  the  first  duty  of  a  cap- 
tor to  convey  his  prize  into  a  court  of  his  own  country  for  ad- 
judication. In  former  times  he  was  permitted  to  take  his 
prize  into  a  neutral  port.  This  is  still  the  rule  of  interna- 
tional law,  but  the  almost  invariable  practice  of  neutrals  in 
recent  wars  has  been  to  forbid  such  a  use  of  their  ports  except 
in  cases  of  distress  or  emergency.^ 

Vessels  captured  on  the  high  seas  are  sent  into  port  under 

'II   Halleck,  pp.  383,  384;   III  "Captures    must   be    determined 

Phillimore,   §§   348,    357 ;     Dana's  upon  competent  evidence,  and  no 

Wheaton,   §   359;    Vattel,  liv.  iii.  rules fordeterminingthecompeten- 

chap.    xii.   §    196;    the   Peterhoff,  cy  of  such  evidence  are  more  proper 

Blatchford,  Prize  Cases,  p.  620.  for  the  use  of  the  executive  de- 

^  Manning,  p.  476  ;  II  Halleck,  p.  partment  than  those  which  prevail. 

383;    Hall,  §    149;    Snow,   p.    166;  in  the  courts  of  admiralty." — I  Ibid 

Dana's  Wheaton,  §  388,  note  186  p.401.  "Though  it  is  thedutyofthe 

'    II    Phillimore,    §§    361-364;  captor,  under  the  law  of  nations,  af- 

Dana's  Wheaton,  §  388,  note  186;  firmed  by  the  act  of  Congress  (Rev. 

Vattel,  liv.  iii.  chap.  xiii.  §  196;  II  Stat.,  §  4615),  to  send  in  captured 

Halleck,  p.  385 ;    Hall,  §   277 ;   V  property    for    adjudication    by    a 

Calvo,  §§  3012-3033;  Snow,  p.  166;  court  of  his  own  country  having 

\htWilhelmsbrog,'^^o\nn?>ov\,h.^vs\.  competent  jurisdiction,  yet  he  may 

Rep.  p.  143 ;  the  Catharina  Eliza-  be  excused  by  imperative  circum- 

beth,\  Acton,  Adm.  Rep.  p.  309.  "A  stances  for  making  a  sale  of  such 

captured  vessel  must  be   brought  property  and  afterwards  seasonably 

within  the  jurisdiction  of  the  coun-  subjecting    the    proceeds    to    the 

try  to  which  the  captor  belongs  be-  jurisdiction   of  a  proper  court  of 

fore  a  regular  condemnation  can  be  prize." — Jecker  vs.  Montgomery,  13 

awarded." — I  Opin.  Att-Gen.p.78.  Howard,  498, 


MARITIME    CAPTURE  363 

charge  of  a  prize-master,  who,  with  an  adequate  prize-crew, 
is  placed  on  board  for  that  purpose.  It  is  the  duty  of  the 
prize-master  to  secure  the  ship  and  goods  in  his  charge  from 
spohation  or  damage  during  the  homeward  passage,  and  to 
dehver  his  prize,  immediately  upon  her  arrival,  into  the  legal 
possession  of  the  court  having  jurisdiction  over  the  case.  The 
ship's  papers,  log-book,  register,  sea-letters,  and  bills  of  lading 
are  sealed  by  the  commanding  ofificer  of  the  capturing  vessel, 
and  they,  with  two  or  more  members  of  the  ship's  company, 
are  conveyed  into  port  by  the  prize-master,  and  are  delivered 
with  the  prize  into  the  custody  of  the  court.' 

Crezvs  of  Captured  Vessels.  The  crews  of  enemy  merchant 
vessels  captured  on  the  high  seas  become  prisoners  of  war, 
and  are  entitled  to  the  rights  guaranteed  to  that  class  by  the 
rules  of  war.  The  crews  of  captured  neutral  vessels  cannot 
be  regarded  as  prisoners  of  war.  They  are  simply  detained 
subject  to  the  action  of  the  prize-court  upon  the  ship  on 
board  of  which  they  are  employed.  They  are  not  enemies, 
and  are  not  subject  to  detention  or  punishment.  No  measures 
of  severity  towards  them  are  justifiable  except  in  cases  of 
great  emergency,  and  for  such  injuries,  when  shown  to  be 
unnecessary,  prize-courts  may  decree  damages  to  the  injured 
parties.' 

The  Ransom  of  Captured  Vessels.  The  practice  of  fur- 
nishing prize-crews  tends  to  deplete  the  fighting  strength  of 
Ihe  captor,  and,  if  a  number  of  captures  are  made,  a  time 
must  come  when  a  commander,  having  a  due  regard  to  the 
safety  and  efficiency  of  his  own  ship,  can  no  longer  make  such 
detachments  from  his  crew.  This  emergency  is  recognized 
and  provided  for  by  the  law  of  nations,  and  by  the  municipal 
law  of  most  states,  which  authorize  him  in  such  an  emergency 
to  destroy  his  prize  or  to  accept  a  ransom.* 

'  II  Halleck,  p.  409;  III  Philli-  Ibid.  p.  356;  the  f^z7//^»«,6  Ibid.  p. 

more,   §§  348-355:   Hall,  §  277;  316. 

Dana's  Wheaton,  §  388,  note  186,  *  III   Phillimore,  p.  690;   Snow, 

par.  v.;    II  Twiss,  §  166;  the  Pti-  p.  155, 

risstma    Concepcion,  5     Robinson,  '  Abdy's  Kent,  p.  276.    "  If  the 

Adm,  Rep.  p.33  ;  Die  Fire  Datiier,  prize  is  a  neutral  ship,  no  circum- 


364  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

Destruction  of  Captured  Vessels.  As  the  present  tendency 
of  neutral  states  is  to  close  their  ports  to  maritime  prizes, 
such  disposition  of  prizes  is  more  likely  to  increase  than  de- 
crease in  frequency.  The  practice  of  destroying  prizes  has 
been  objected  to,  but  rather  on  the  ground  of  humanity  than 
legality.  If  the  right  to  capture  enemy  property  at  sea  be  ad- 
mitted, the  right  to  destroy  it  follows  as  a  natural  consequence. 
The  title  of  the  original  owner  has  been  forcibly  divested  by 
an  act  of  war.  If  any  injury  has  been  inflicted  upon  the  bel- 
ligerent, that  injury  consists  in  the  fact  of  capture,  which 
amounts  to  a  destruction  of  the  property  in  so  far  as  the 
owner  and  his  government  are  concerned.  It  can  matter  little 
to  either  what  disposition  is  made  of  the  property  after  the 
owner's  title  has  been  extinguished.' 

Ransom  Contracts.  Ransom  consists  in  an  agreement  en- 
tered into  between  a  captor  and  the  master  of  a  captured  ves- 
sel, acting  in  behalf  of  the  owners,  by  which,  in  consideration 
of  the  latter  binding  himself  to  pay  a  stipulated  sum,  he  is 
permitted  to  continue  his  voyage,  by  a  specified  route,  to  a 
certain  port  of  destination.  The  instrument  containing  this 
agreement  is  called  a  ransom  contract,  and,  when  regularly 
made,  its  binding  force  is  recognized  by  the  law  of  nations.^ 

The  ransom  contract  is  executed  in  duplicate,  one  copy 
being  retained  by  the  captor,  and  the  other  by  the  master  of 
the  captured  vessel,  to  whom  it  serves  as  a  safe-conduct  dur- 
ing the  rest  of  his  voyage.  The  precise  route  to  be  pursued 
is  stated  in  the  contract,  and  if  he  departs  from  it  he  is  liable 
to  a  second  capture.     In  this  case  the  ransom  contract  consti- 

stances  will  justify  her  destruction  son,  381,  386  ;   the  Leucade,  Spinks, 

before  condemnation.     The   only  221;  V  Calvo,  §  3059;  Risley,  p.  149; 

proper  reparation  to  the   neutral,  Ord.  de  la  Mar.  p.  281;  II  Tvviss,  § 

in  such  a  case,  is  to  pay  him  the  166;   Dana's  Wheaton,  §  388,  note 

full  value  of  the  property  destro}'^-  186,  par.  6. 

ed." — II  Twiss,  International  Law  -  I  Kent,  pp.  104-110;  II  Halleck, 

during   War,  §    167,  p.   331.     The  pp.  358-361  ;  Snow,  p.  102;  Creasy, 

Felicity,  2  Dodson,  Admiralty  Re-  pp.  563,  564;  II  Tvviss,  §  180;  Hall, 

ports,  p.  386 ;    Boyd's  Wheaton,  pp.  §151;  Risley,  p.  150;  II  Ferguson, 

432,  433-  §  206  ;  Upton,  pp.  247,  248, 
'  Hall,  §  150;  the  Felicity,  3  Dod- 


MARITIME    CAPTURE  365 

tutes  a  prior  lien  upon  the  prize,  and  must  be  satisfied  out  of 
the  proceeds  of  the  sale,  the  remainder  only  being  decreed  to 
the  second  captor.  The  copy  of  the  ransom  contract  which 
is  furnished  the  enemy  master  is,  in  effect,  a  guarantee  against 
capture  by  another  cruiser  of  the  captor's  state  while  in  prose- 
cution of  the  voyage  described  in  the  agreement.  He  forfeits 
whatever  protection  the  contract  gives  him  if  he  is  found  out 
of  the  course  therein  prescribed,  unless  driven  from  it  by  stress 
of  weather  or  other  evident  necessity.  The  contract  usually 
specifies  that,  if  the  ship  is  wrecked  on  the  high  seas,  or  by 
the  perils  of  the  sea,  the  instrument  is  void.  It  is  otherwise, 
however,  in  case  the  vessel  be  stranded,  or  wrecked  intention- 
ally by  the  master.  "  If  the  captor,  after  having  ransomed  an 
enemy's  vessel,  is  himself  taken  by  the  enemy,  together  with 
the  ransom  bill  of  which  he  is  the  bearer,  this  ransom  bill  be- 
comes a  part  of  the  capture  made  by  the  enemy,  and  the 
persons  of  the  hostile  nation  who  were  debtors  of  the  ransom 
are  thereby  discharged  from  their  obligation  under  the  ransom 
bill."  '  If  the  ransom  contract  has  been  conveyed  to  the  cap- 
tor's state,  or  to  a  place  of  safety,  prior  to  capture,  it  retains  its 
obligatory  character." 

Ransom  contracts  constitute  one  of  the  exceptions  to  the  rule 
of  non-intercourse  between  enemies  in  war,  and  a  suit  to  recover, 
on  such  a  contract,  should  not  be  barred  because  the  plaintiff 
is  an  alien  enemy.  The  intercourse  which  is  implied  by  the 
negotiation  of  such  an  instrument  is  a  recognized  necessity  of 
war,  and,  for  the  purpose  of  enforcing  his  legal  right,  an  alien 
enemy  should  be  recognized  as  having  a  legal  standing  in  the 
courts  of  the  debtor's  state.  Indeed,  such  is  the  course  pur- 
sued by  most  modern  states.  England  alone  constitutes  an 
exception  to  the  rule.  "  The  English  courts  have  decided  that 
the  subject  of  an  enemy  is  not  permitted  to  sue  in  the  British 
courts  of  justice,  in  his  own  proper  person,  for  the  payment 

'II  Halleck,  p.  360 ;   Hall,  §151;  183;   II   Halleck,  pp.  358-361;   II 

Snow,  pp.  loi,  102;  Glass,  p.  59.  Ferguson,  §  206;  Woolsey,  §  150; 

M    Kent,   pp.    104-108;    Boyd's  III  Phillimore,  p.  644 ;  Upton,  pp. 

Wheaton,  §  411  ;  II  Twiss,  §§  180-  247-248. 


366  THE   ELEMENTS  OF  INTERNATIONAL  LAW 

of  a  ransom,  on  the  technical  objection  of  the  want  of  z.  per- 
sona standi  injudicio,  but  that  the  payment  could  be  forced 
by  an  action  brought  by  the  imprisoned  hostage  in  the  courts 
of  his  own  country  for  the  recovery  of  his  freedom.  This 
technical  objection  is  not  based  upon  principle  nor  supported 
by  reason,  and  the  decision  has  not  the  sanction  of  general 
usage."  ' 

Hosfages.  It  was  the  practice  in  former  times  to  give  host- 
ages to  the  captor  as  additional  security  for  the  payment  of 
ransom.  They  were  conveyed  to  the  captor's  country,  and 
were  there  detained  as  prisoners  until  the  ransom  was  paid. 
They  were  not  always  treated  as  prisoners  of  war,  however, 
but  were  at  times  subjected  to  special  hardships  and  restric- 
tions, imposed  upon  them  with  a  view  of  constraining  the 
payment  of  the  ransom  contract.  If  they  died  in  captivity 
the  ransom  contract  still  remained  binding,  as  they  were  only 
regarded  as  collateral  security  for  its  payment." 

Recapture  and  Postliminy.  When  a  prize  has  been  made 
at  sea,  it  has  been  seen  to  be  the  duty  of  the  captor  to  send 
it  to  a  port  of  his  own  country,  or  that  of  an  ally,  for  adju- 
dication. In  the  prosecution  of  this  voyage  it  is  liable  to 
recapture,  and  a  question  arises  as  to  its  ownership  in  such  a 
case.  The  prize  has  been  recaptured  by  an  armed  vessel  of 
the  same  nationality  as  the  original  owner;  but  the  recapture, 
in  so  far  as  the  recaptor  is  concerned,  was  attended  by  the 
same  risk  and  danger  that  would  have  been  involved  in  an 
original  capture  of  the  same  vessel  from  the  enemy.  The 
captor  has  acquired  certain  rights  in  the  prize,  and,  at  the 
same  time,  the  title  of  the  original  owner  to  the  property  has 
been  to  a  certain  extent  revested.  The  fiction  of  law  which 
has  been  invented  to  adjust  these  conflicting  claims  is  bor- 
rowed from  the  Roman  law,  and  is  called  the  rule  of  post- 
liminy^    It  was   applied  by  the  Romans  to  all  captures   of 

'II    Halleck,    p.    361;     Boyd's  sey,   §   150;    the   ships    taken    at 

Wheaton,  p.  41 1  ;  the  Hoop,  i  Rob.  Genoa,  4  Rob.  388. 

Adm.  Rep.  pp.  169,  201.  '  Upton,  p.  234;  Creasy,  pp.  510 

""  II  Halieck,  pp.  360,  536;  Wool-  511  ;  I  Kent,  pp.  104-108;  the  Res- 


MARITIME   CAPTURE  367 

persons  or  property  made  by  an  enemy  in  war,  and  a  similar 
rule  applied  to  such  portions  of  the  public  territory  as  passed 
into  the  hands  of  an  enemy  as  the  result  of  conquest.  The 
title  to  captured  property  vested  in  the  captor  so  long  as  it 
remained  in  his  secure  possession.  As  prisoners  taken  in  war 
became  the  slaves  of  their  captors,  their  status  in  Rome,  as 
freemen,  was  suspended  during  captivity.  If  slaves  were  capt- 
ured the  rule  of  property  applied.  When  recaptured  from 
the  enemy  the  title  of  the  original  owner  was  revived,  and 
the  property  was  restored  to  him  on  payment  of  salvage.  A 
person  who  was  recaptured  became,  according  to  the  rule  of 
war,  the  property  of  his  recaptor ;  but  the  law  permitted  him 
to  resume  his  freedom,  or  citizenship,  upon  the  payment  of  a 
specified  sum.' 

The  modern  rule  of  postliminy  resembles  in  principle  the 
rule  of  the  Roman  law,  although  it  is  more  just  and  humane 
in  its  application.  Persons  recaptured  in  war  resume,  at  once, 
all  their  personal  and  property  rights.  Slavery  and  private 
ransom  are  alike  discountenanced  by  international  law. 
Property  recaptured  from  an  enemy  on  land,  if  possible  of 
identification,  reverts  to  its  owner  without  cost  or  payment. 
Property  recaptured  from  an  enemy  at  sea  is  restored  to  its 
original  owner,  but  is  charged  with  the  payment  of  a  reward 
to  the  recaptor,  to  reimburse  him  for  the  risk  incurred  and  the 
service  rendered.*  The  reward  paid  to  recaptors  for  the  re- 
covery of  property  captured  at  sea  is  called  salvage.  The 
amount  of  salvage  to  be  paid,  in  any  particular  case  of  recapt- 
ure, is  determined  by  a  prize-court,  in  accordance  with  the 
municipal  law  of  the  recaptor's  state.  The  amount  of  salvage 
awarded  varies  with  the  difificulty  of  recapture  and  the  value 
of  the  prize.    It  depends  also  upon  the  character  of  the  vessel 

ohition,    1    Dallas,    115;     Pothier,  p.  109;  Woolsey,  §  151;  II  Philli- 

Traite  du  Droit  de  Propriete,  Nos.  more,  pp.  615.  616  ;  V  Calvo,  §  3184. 

134,   135;  III  Phillimore,  pp.  644-  ^  Boyd's  Wheaton,  pp.  435,  465, 

647;  II  Halleck, pp.  358-361;  Boyd's  466;  Hall.  pp.  486-493  ;  II  Halleck, 

Wheaton,  §§  411,  411a;   V  Calvo.  pp.  512-524;  Woolsey,  §§  151-153; 

§§3169-3173,  3184.  Upton,  pp. '234-241 ;  III  Phillimore, 

'  Inst.  liv.  i.  chap.  xii.  §  5  ;  I  Kent,  pp.  61 5-643 ;  V  Calvo,  §§  3169-3173. 


363  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

by  which  the  recapture  is  made,  the  award  being  greater  iu 
the  case  of  a  privateer  or  merchant  vessel  than  in  that  of  a 
vessel  of  war;  none  being  awarded  for  the  recapture  of  one 
public  armed  vessel  by  another,  "  In  general  no  salvage  is 
due  for  the  recapture  of  neutral  vessels  and  goods,  upon  the 
principle  that  the  liberation  of  a  bona  fide  neutral,  from  the 
hands  of  the  enemy  to  the  captor,  is  no  beneficial  service  to 
the  neutral,  inasmuch  as  the  same  enemy  would  be  compelled, 
by  the  tribunals  of  his  own  country,  to  make  restitution  of  the 
property  thus  unjustly  seized."  ' 

As  recapture  is  possible  only  between  the  place  of  original 
capture  and  the  port  to  which  it  is  sent  by  the  captor,  the 
right  of  postliminy  exists  between  the  same  limits  of  time  and 
place.  The  title  of  the  original  owner  is  finally  extinguished 
by  the  action  of  the  prize-court  in  decreeing  the  condemna- 
tion and  sale  of  the  captured  property ;  and  the  title  acquired 
by  the  purchaser  is  good,  even  against  the  original  owner  or 
his  government.  If  such  property  be  recaptured  after  it  has 
been  regularly  condemned  and  sold,  it  is  not  restored  to  the 
original  owner,  but  is  regarded  as  lawful  prize,  and  is  treated 
as  such."     England  furnishes  the  only  exception  to  this  rule. 

'  Boyd's  Wheaton,  p.  435  ;  I  Hal-  if  otherwise,  then  the  whole  prop- 

leck,  p.  189;  II  Ibid.  pp.  514-537;  erty  must  be  condemned  to  the  re- 

Woolsey,  §  152;  Hall, §  152;  Upton,  captors.     It    appears  that   by  the 

pp.  241-251  ;  II  Twiss,  p.  345.    For  law  of  France  in  cases  of  recapture, 

the  law  of  the  United  States  on  after  the  property  has  been  twenty- 

the  subject,  see  §  4652  of  Revised  four   hours    in    possession   of  the 

Statutes    of   the    United     States,  enemy,  the  whole  property  is  ad- 

For  that  of  France,  England,  Spain,  judged  good  prize  to  the  recaptors, 

Portugal,  Denmark,  Sweden,  Hoi-  whether  it  belonged  to  her  subjects, 

land,  see  Boyd's  Wheaton,  pp.  442-  to  her  allies,  or  to  neutrals.     We 

450;  Snow,  p.  105  ;  the  Safita  Cruz,  are  bound,  therefore,  in  this  case 

I  Robinson,  Adm.  Rep.  p.  50;  the  to  apply  the  same  rule;  and  as  the 

Ceylon,  i  Dodson,  105,  1 17-120.  property  in  this  case  was  recapt- 

'  Hall,  pp.  493-495  ;  II  Halleck,  ured  after  it  had  been  in  possession" 
pp.  522,  523;  III  Phillimore,  pp.  of  the  enemy  more  than  twenty- 
617,618;  Upton,  pp,  233-242;  Va-  four  hours,  it  must,  so  far  as  it 
lin,  Traite  des  Prises,  liv^  iii.  tit.  ix.  belonged  to  persons  domiciled  in 
art.  10.  "  In  cases  of  recapture  the  France,  be  condemned  to  the  cap- 
rule  of  reciprocity  is  applied.  If  tors." — Schooner^^/^/zVz^,9Cranch, 
France  would  restore  in  a  like  244  [288]  ;  the  Santa  Cruz,  i  Rob- 
case,  then  we  are  bound  to  restore  ;  inson,  Adm.  Rep.  p.  50;  the  Belle 


MARITIME   CAPTURE  369 

According  to  the  English  law,  property  recaptured  during  the 
continuance  of  a  war  is  restored  to  its  owner  upon  payment 
of  salvage,  no  matter  how  long  it  has  been  in  the  enemy's 
possession  nor  through  how  many  hands  it  may  have  passed 
in  the  way  of  purchase  and  sale.  A  treaty  of  peace  is  alone 
held  to  confirm  and  perfect  the  title  to  captures  made  during 
a  war.' 

Prize-Courts 

Prize-Courts  and  their  Jurisdiction.  Whenever  a  capture 
has  been  made  at  sea,  it  becomes  the  first  duty  of  the  captor 
to  cause  it  to  be  conveyed  to  a  port  of  his  own  country,  or 
that  of  an  ally,  for  adjudication.  The  municipal  laws  of  all 
states  provide  special  tribunals  whose  duty  it  is  to  determine 
questions  of  prize.  These  tribunals  are  called  Prize-Courts, 
and  as  the  decision  of  such  questions  is  an  incident  of  ad- 
miralty jurisdiction,  the  admiralty  courts  of  most  states  are 
given  jurisdiction  over  cases  of  maritime  capture.  This  power 
may  be  vested  in  these  courts  as  a  branch  of  their  general 
admiralty  jurisdiction,  or  jurisdiction  may  be  conferred  upon 
them  by  special  commission  during  a  particular  war.  The 
former  practice,  prevails  in  the  United  States,  the  latter  now 
prevails  in  England.^ 

Prize-courts  may  sit  in  the  ports  or  territory  of  a  belligerent 
or  in  those  of  an  ally.  They  cannot  sit  in  neutral  ports,  even 
with  the  consent  of  the  neutral  government,'  and  a  belliger- 
ent would  justly  regard  the  granting  of  such  permission  as  a 
violation  of  neutral  obligation.  This  arises  from  the  peculiar 
jurisdiction  of  these  tribunals.     Prize-courts  do  not  try  crim- 

Edwards,  Adm.   Rep.  p.  66;   the  direct  to  the  Supreme  Court  of  the 

Wight,  5  Robinson,  315.  United  States." — V  Calvo,  §§  3035- 

'  II  Halleck,  pp.  514-526  ;  27  and  3044;   III  Phillimore,  §§  437-439. 

28    Victoria,  chap.  xxv.  §  40;    III  '  Boyd's  Wheaton,  §385;  II  Hal- 

Phillimore,  §§  418-436.  leek,  pp.  422,  423;  Snow,  pp.  166, 

MI  Halleck,  pp.  415-422;  II  Fer-  167;    Manning,    pp.  474,  475;  the 

guson,  §  282 ;  Creasy,  §  519.    "  In  the  Heinrich  and  Maria,  4  Robinson, 

United  States  the   district  courts  Adm.  Rep.  p.  43  ;   V  Calvo,  §§  3045- 

have  original  jurisdiction  in  prize  3065;  Dana's  Wheaton,  §§  387-389, 

cases,  subject  to  appeal,  however,  note  186. 


370  THE  ELEMENTS  OF   INTERNATIONAL  LAW 

inal  cases  or  determine  controversies  arising  between  individ- 
uals. The  question  before  them  in  case  of  a  particular  capt- 
ure is  whether,  according  to  the  law  of  nations,  the  ship  and 
cargo  were  liable  to  capture,  and,  if  so,  whether  the  capture 
was  lawfully  made.  If  their  decision  be  in  the  affirmative, 
the  ship  and  cargo  are  condemned;  if  the  decision  be  in  the 
negative,  they  are  released.  In  its  investigation  of  the  cir- 
cumstances of  the  capture,  and  in  reaching  a  decree  of  con- 
demnation, the  court,  to  a  certain  extent,  acts  in  behalf  of 
the  state  under  whose  authority  it  sits,  and  its  decree  fixes 
upon  that  government,  in  the  highest  degree,  the  responsi- 
bility for  the  seizure  and  condemnation  of  the  enemy's  prop- 
erty or  contraband  goods.  Its  action,  therefore,  to  a  much 
greater  degree  than  is  the  case  with  ordinary  judicial  proceed- 
ings, constitutes  an  act  of  sovereignty,  and  for  this  reason  it 
cannot  perform  such  an  act  within  the  jurisdiction  of  another 
sovereign  state.' 

The  Law  Applied  by  Prize-Courts.  In  deciding  cases  of 
maritime  capture  prize-courts  apply  the  rules  of  international 
rather  than  municipal  law.  For  this  reason  decisions  in  similar 
cases,  rendered  by  the  prize-courts  in  other  states,  are  regarded 
by  them  as  constituting  precedents  of  a  binding  character. 
"  Prize-courts  are  in  no  way  bound  to  regard  local  ordinances 
and  municipal  regulations,  unless  they  are  sanctioned  by  the 
law  of  nations.  Indeed,  if  such  ordinances  and  regulations  are 
in  contravention  of  the  established  rules  of  international  juris- 
prudence, prize-courts  must  either  violate  their  duty  or  entirely 
disregard  them.  They  are  not  binding  on  the  prize-courts, 
even  of  the  country  by  which  they  are  issued.  The  stipulations 
of  treaties,  however,  are  obligatory  upon  the  nations  which 
have  entered  into  them,  and  prize-courts  must  observe  them 
in  adjudicating  between  subjects  or  citizens  of  the  contracting 
parties."* 

'  II   Halleck,  pp.  422,  423;    HI  "^  II  Halleck,  pp.  433-436;  H  Fer- 

Phillimore,  §§  433-436;    V  Calvo,  guson,  §  282;  Creasy,  §  519;  Snow, 

§§  3056,  3057;    Dana's  Wheaton,  §  pp.  165,  166;    the  Fox,  Edw.  Adm. 

389.  Rep.  p.  312;    the  Recovery,  6  Rob. 


MARITIME    CAPTURE  3/1 

Procedure  in  Prize  Cases.  The  principles  of  prize,  as  at 
present  applied  to  maritime  captures,  are  almost  identical  with 
the  provisions  of  the  Roman  law  on  the  same  subject.  "  The 
allegations,  proofs,  and  proceedings  are  therefore,  in  general, 
modelled  upon  the  civil  law,  with  such  additions  and  altera- 
tions as  the  practice  of  nations  and  the  rights  of  belligerents 
and  neutrals  unavoidably  impose.  .  .  .  Not  only  the  proceed- 
ings, but  also  the  rules  of  evidence,  are,  in  many  respects,  dif- 
ferent from  those  of  courts  of  common  law ;  and  prize-courts 
not  only  decide  upon  the  claims  of  captors,  but  also  upon  their 
conduct  in  making  the  capture,  and  subsequently,  and  not  in- 
frequently, declare  a  forfeiture  of  their  rights  with  vindictive 
damages. 

"  In  prize  cases  the  evidence  to  convict  or  condemn  must 
come,  in  the  first  instance,  from  the  papers  and  crew  of  the 
captured  ship.  It  is  the  duty  of  the  captors  to  bring  the  ship's 
papers  into  the  registry  of  the  district  court,  verify  them  on 
oath,  and  to  have  the  examinations  of  the  principal  officers 
and  seamen  of  the  captured  ship  taken  on  the  standing  inter- 
rogatories, and  not  viva  voce.  It  is  exclusively  upon  these 
papers  and  examinations  that  the  case  is  to  be  heard  in  the 
first  instance.  If,  from  this  evidence,  the  property  clearly 
appears  to  be  hostile  or  neutral,  condemnation  or  restitution 
immediately  follows.     If  the  property  appears  to  be  doubtful, 

Aam.  Rep.  pp.  348,  349;  III  Philli-  own  sovereign.  In  the  absence  of 
more,  §§  433-436 ;  Boyd's  Wheaton,  such  instructions  their  jurisdiction 
§397a;theMar/a,  i  Rob.  Adm.Rep.  and  rules  of  decision  are  to  be  as- 
p.  350.  "  The  law  of  prize  is  part  of  certained  by  reference  to  the  known 
the  law  of  nations.  In  it  a  hostile  powers  of  such  tribunals,  and  the 
character  is  attached  to  trade,  in-  principles  by  which  they  are  gov- 
dependently  of  the  character  of  the  erned  under  the  public  law  and 
trader  who  pursues  or  directs  it."  the  practice  of  nations." — Ihe  Amy 
—The  Rapid,  8  Cranch,  155  [162].  Warwick,  2  Sprague,  123.  |' Nei- 
"  The  condemnation  of  a  vessel  and  ther  the  President  nor  any  military- 
cargo  in  a  prize-court  is  not  a  crim-  officer  can  establish  a  court  in  a 
inal  sentence.  No  person  is  charged  conquered  country  and  authorize 
with  an  ofTence,  and  so  no  person  it  to  decide  upon  the  rights  of  the 
is  in  a  condition  to  be  relieved  and  United  States  or  of  individuals  in 
reinstated  by  a  pardon."— 10  Opin.  prize  causes,  or  to  administer  the 
Att.-Gen.  p.  452.  "  Prize-courts  are  law  of  nations."— Jecker  vs.  Mont- 
subject  to  the  instructions  of  their  gomery,  13  Howard,  498. 


372  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

or  the  case  suspicious,  further  proof  may  be  granted  according 
to  the  rules  which  govern  the  legal  discretion  of  the  court,  if 
the  claimant  has  not  forfeited  his  right  to  it  by  a  breach  of 
good  faith.  .  .  .  Where  the  national  character  does  not  dis- 
tinctly appear,  or  where  the  question  of  proprietary  interest  is 
left  in  doubt,  further  proof  is  usually  ordered."  ' 

The  common-law  doctrines,  as  to  the  competency  of  wit- 
nesses, are  not  applicable  to  prize  proceedings.  No  person  is 
incompetent  in  those  courts  merely  on  the  ground  of  interest. 
His  testimony  is  admissible,  subject  to  all  exceptions  as  to  its 
credibility.^  The  rule  that  the  testimony,  for  the  condemna- 
tion of  a  prize,  must  be  obtained,  in  the  first  instance,  directly 
from  documents  or  witnesses  found  on  board  the  vessel  at 
the  time  of  her  seizure,  is  always  adhered  to,  unless  satisfac- 
tory reasons  are  shown  for  departing  from  it  in  a  particular 
instance. '' 

Right  of  Appeal  in  Prize  Cases.  The  right  of  appeal  is 
invariably  recognized  in  the  laws  creating  prize-courts  and 
defining  their  jurisdiction  ;  and,  on  account  of  the  importance 
of  the  interests  involved,  special  provision  is  frequently  made 
to  enable  prize  cases  to  be  carried  up,  by  way  of  appeal,  to  a 
court  of  last  resort,  in  a  much  shorter  time  than  is  usual,  and 
without  passing  through  any  of  the  courts  intervening  between 
those  of  original  and  final  jurisdiction.  The  laws  of  the  United 
States  provide  for  this  contingency  by  permitting  an  appeal 
to  be  taken  directly  to  the  Supreme  Court,  from  the  district 
courts,  which,  in  the  United  States,  have  original  jurisdiction 
in  all  cases  of  maritime  capture." 

Distribution 

Prize-Money.  It  has  been  seen  that  the  title  to  captured 
property  is  vested,  by  the  decree  of  condemnation,  in  the  gov- 
ernment of  the  ship  by  which  such  capture  is  made  ;  its  sub- 

'  II  Halleck,  pp.  434-436;  Upton,  ^  The  Zavalla,  Blatchford,  Prize 

pp.  396-434;  III  Phillimore,  §§441-  Cases,  p.   173;   the  Ja fie  Campbell, 

518;  V  Calvo,  §§  3060-3087.  Blatchford,  Prize  Cases,  p.  loi. 

^  The  Ajine,  3  Wheaton,  435.  *  Upton,  pp.  433,  434. 


MARITIME   CAPTURE  373 

sequent  disposition  is  regulated  by  the  municipal  law  of  the 
captor's  state.  The  proceeds  of  the  sale  of  ships  and  cargoes 
which  have  been  regularly  captured  and  condemned  is  called 
prize-money,  which,  by  the  law  of  most  states,  is  distributed 
among  officers  and  crews  of  the  vessels  or  fleets  by  whom  the 
capture  was  made.  Such  was  the  law  of  the  United  States,  in 
respect  to  the  distribution  of  the  proceeds  of  maritime  prizes, 
from  the  establishment  of  the  government  under  the  Consti- 
tution until  the  close  of  the  war  of  1898  with  Spain,  when,  by 
a  formal  enactment  of  Congress,  all  laws  authorizing  the  distri- 
bution of  the  proceeds  of  the  sale  of  prizes,  as  well  as  those 
authorizing  the  payment  of  bounty  or  head-money  were  finally 
repealed.* 

Privateers.  In  case  of  privateers,  prize-money  is  distributed 
among  the  owners,  officers,  and  crew  in  accordance  with  any 
agreement  which  may  have  been  made  by  them  for  that  pur- 
pose ;  in  the  absence  of  such  an  agreement,  however,  one-half 
of  the  prize-money  is  awarded  to  the  owners  and  one-half  to 
the  officers  and  crew,  which  is  distributed  in  accordance  with 
the  same  rules  as  are  applied  to  public  armed  vessels. 

Head-Money.  In  addition  to  the  distribution  of  prize-money, 
as  above  described,  a  further  bounty  is  frequently  allowed  the 
officers  and  crew  of  a  public  armed  vessel  for  every  person 
on  board  any  ship  or  vessel  of  war  of  the  enemy  at  the  begin- 
ning of  an  engagement  which  is  sunk  or  disabled  as  a  result 
of  such  engagement.  The  amount  of  bounty,  or  head-money, 
as  it  is  called,  is  fixed  at  a  certain  sum  per  man  where  the  en- 
emy is  of  inferior  force,  a  larger  allowance  being  made  where 
the  enemy's  ship  is  of  equal  or  superior  force.'^ 

Rules  for  Determining  the  Nationality  of  Ships  and 
Goods.  It  has  been  seen  that,  in  the  determination  of  a  ques- 
tion of  prize,  the  decision  will  depend  upon  whether  the  prop- 


•  Section  13  Act  of  March  3,  1899  ^  Head-money  and  bounty  were 

(30  Statutes  at  Large,  p.  1007);  sec-  abolished  in  the  United  States  by 

lions  4630-4635  and  4643  of  the  section   13  Act  of  March  3,  1899 

Revised  Statutes  were  repealed  by  (30  Statutes  at  Large,  p.  1007). 
this  enactment, 


374  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

erty  seized  has,  or  has  not,  the  enemy  character.  To  deter- 
mine questions  thus  arising,  as  to  the  nationality  of  ships  and 
goods,  certain  rules  are  recognized  by  the  prize-courts  of  all 
nations.     The  more  important  of  them  are — 

(a.)  The  nationality  of  ships  and  goods  is,  in  general,  deter- 
mined by  the  domicile  of  their  owner.  Those  owned  by  one 
domiciled  in  a  hostile  country  are  enemy  goods ;  those  owned 
by  one  having  a  domicile  in  a  neutral  state  are  neutral  goods." 

(d.)  The  products  of  hostile  soil,  and  articles  manufactured 
,  in  enemy's  territory,  are  hostile,  by  whomsoever  owned. 

(c.)  The  share  of  a  neutral  partner,  in  a  firm  having  a  hostile 
domicile,  is  hostile. 

(d.)  If  an  owner  of,  or  partner  in,  a  business  situated  in  a 
neutral  state  has  himself  a  hostile  domicile,  his  share  in  the 
neutral  house  is  regarded  as  enemy  property. 

(r.)  A  neutral  sailing  under  the  enemy  flag,  or  carrying  his 
register  or  license  to  trade,  is  regarded  as  an  enemy. 

(/.)  The  nationality  of  goods  is  determined  by  their  owner- 
ship at  the  instant  of  capture ;  a  change  made  in  ownership 
after  that  date  is  not  recognized. 

(^.)  "  Vessels  of  discovery,  or  of  expeditions  of  exploration 
and  survey,  sent  for  the  examination  of  unknown  seas,  islands, 
and  coasts,  are  by  general  consent  exempt  from  the  contin- 
gencies of  war,  and  are  therefore  not  liable  to  capture.  Like 
the  sacred  vessel  which  the  Athenians  sent  with  their  annual 
offerings  to  the  temple  of  Delos,  they  are  respected  by  all  na- 
tions, because  their  labors  are  intended  for  the  benefit  of  all 
mankind.  It  has  been  the  invariable  practice  of  European 
powers  to  grant  safe-conducts  to  ships  sent  to  explore  the 
Arctic  regions,  against  being  captured  by  ships  of  war  on  their 
return,  in  the  event  of  war  breaking  out  during  such  absence."  " 

(//.)  "  Fishing-boats  have  also,  as  a  general  rule,  been  ex- 
empted from  the  effects  of  hostilities.    As  early  as  1521,  while 

'  Walker,  part  iii.  chap.  v.  §  40 ;  Phillimore,  §§  483-485;   II  Twiss, 

the  Phoenix,  5  C.  Rob.  Adm.  Rep.  §§  152-165;  IV  Calvo,  §§>2294-24io, 

p.  20.  3088-3 1 1 4, 

^  II    Halleck,   pp.    142-151  ;    III 


MARITIME    CAPTURE  375 

war  was  raging  between  Charles  V.  and  Francis  I.,  ambassa- 
dors from  these  two  sovereigns  met  at  Calais,  then  English, 
and  agreed  that,  whereas  the  herring  fishery  was  about  to 
commence,  the  subjects  of  both  belligerents  engaged  in  this 
pursuit  should  be  safe  and  unmolested  by  the  other  party, 
and  should  have  leave  to  fish  as  in  time  of  peace.  In  the  war 
of  1800  the  British  and  French  governments  issued  formal  in- 
structions exempting  the  fishing-boats  of  each  other's  subjects 
from  seizure."  ' 

References.     For  the  rules  of  maritime  capture,  see  Hall,  §§  149-152; 

II  Ortolan,  pp.  1-75;  Glass,  "Marine  International  Law,"  pp.  155-169, 
179-198 ;  II  Halleck,  chaps,  xxii.  and  xxxi. ;  Snow,  pp.  85-88,  163-167  ;  IV 
Calvo,§§  2033-2132,  2199-2410;  V  Ibid.  §§  3004-3034  ;  Manning,  chap.  v. ; 
Dahlgren,  "  International  Law  "  ;  Nys,  "  La  Guerre  Maritime  "  ;  Blunt- 
schli,  "  Le  Droit  de  Butin  en  General,  et  Specialement  du  Droit  de  Prise 
Maritime,"  vol.  ix."Revue  de  Droit  International,"  p.  508 ;  Ibid.  vol.  x.  p.  60; 

III  Phillimore,  pp.  559-614 ;  II  Twiss,  §§  166-207  ;  II  Ferguson,  §§  202-205  ; 
Gessner,  "  Sur  la  Reforme  du  Droit  de  Guerre  Maritime,"  vol.  vii.  "Revue 
de  Droit  International,"  pp.  236-269;  Ibid.  vol.  x.  p.  490;  Bulmerincq,  "Le 
Droit  de  Prises  Maritime,"  Ibid.  vols,  x.-xiv. ;  Upton,  pp.  233-254 ;  Digest 
International  Law,  §§  342-346  ;  Lawrence,  "  International  Law,"  chap.  iv. 
For  recapture,  salvage,  and  postliminy,  see  Lawrence,  "  International 
Law,"  §  209;  II  Twiss,  §§  172-175;  V  Calvo,  §§  3169-3236;  Hall.  §§  151. 
1 52,  162-166  ;  III  Phillimore,  pp.  61 5-647  ;  Creasy,  §  528  ;  Upton,  pp.  233- 
254;  Ferguson,  §§  207-210;  II  Halleck,  pp.  512-538.  For  prize-courts 
and  their  jurisdiction,  see  II  Halleck,  pp.  411-442 ;  HI  Digest  Interna- 
tional Law,  §§  328-330,  363;  V  Calvo,  §§  3035-31  H:  HI  Phillimore,  pp. 
648-769;  Manning,  chap,  xiiii.;  Upton,  pp.  383-469  ;  "  Les  Tribunaux  de 
Prise,  et  Leur  Reforme,"  vol.  xiii.  "Revue  de  Droit  International,"  p.  260 ; 
Risley,  pp.  144,  249-264;  Dana's  Wheaton.  p.  388.  note  186;  Lawrence, 
"International  Law,"  §§  212-215;  see.  also,  the  English  Admiralty  Re- 
ports of  Robinson,  Dodson,  Acton,  and  Edwards,  the  Reports  in  Prize 
Cases  of  the  Supreme  Court  of  the  United  States,  and  the  prize  deci- 
sions of  Blatchford  and  Story. 

'  II  Halleck,  pp.  151, 152  ;  IV  Cal-     II  Ibid.  p.  51 ;    Bluntschli,  §  667; 
vo,  §§  2367-2376 ;  I  Ortolan,  p.  160 ;     Heflfter,  §  137. 


CHAPTER   XII 

NEUTRALITY  :     THE     NEUTRAL     RELATION  :     RIGHTS     AND 
DUTIES    OF    NEUTRALS 

Neutrality.  It  has  been  seen  that  the  outbreak  of  war 
between  two  or  more  states,  and,  in  certain  cases,  the  occur- 
rence of  a  purely  internal  war,  operate  to  place  all  other 
states  of  the  civilized  world  in  a  peculiar  status  of  non-inter- 
ference in  respect  to  the  operations  of  war;  to  the  relation 
thus  created  between  the  states  which  become  parties  to  the 
war  and  those  which  refrain  from  participation  in  its  opera- 
tions—  either  as  belligerents  or  allies  —  the  term  neutrality 
is  applied,  and  a  neutral  state  may  be  defined  as  one  which 
wholly  abstains  from  taking  part  in  an  existing  war  and  ren- 
ders no  aid  or  service  to  either  belligerent  in  his  military  op- 
erations.' 

Character  of  the  Neutral  Relation.  In  strictness,  the  rela- 
tions existing  between  two  states,  at  any  time,  must  be  either 
those  of  peace  or  war.  International  law  recognizes  no  in- 
termediate condition.  When  a  state  occupies  the  position 
of  a  neutral  it  simply  undertakes  to  maintain,  without  inter- 
ruption, its  peaceful  relations  with  both  belligerents.  The 
maintenance  of  such  relations  is,  of  course,  more  difficult  in 
war  than  in  time  of  profound  peace ;  and  to  this  end  a  neu- 
tral state  finds  itself  obliged  to  take  such  precautions,  within 
its  territorial  limits,  as  will  guarantee  the  continuance  of  such 


*  Vattel,  liv.  iii.  chap.  vii.  §  104;  pp.  171,  172;  III  Phillimore,  p. 225; 

Grotius.liv.  iii.  chap.  xvii. ;    II  Hal-  II  Ferguson,  §  226;  I  Kent.  pp.  116, 

leek,  p.  173;  Boyd's  Wheaton,  §§  117;  Upton,  p.  259;  Bluntschli,  §§ 

435.436;   Hall,  pp.  81,82;  Creasy,  742,  743;  Kliiber,  §§279,   280;  IV 

§§  531.  532 ;  Woolsey,  §  163  ;  Risley,  Calvo,  §§  2491-2493;  Heffter,  §  144. 


NEUTRALITY  377 

friendly  relations.  For  the  same  purpose  it  has  recourse  to 
such  positive  measures  as  will  secure  immunity  from  acts  of 
belligerency  within  its  territory,  and  compel  respect  for  its 
sovereignty  and  independence.' 

History  of  Neutrality.  The  rules  of  neutral  obligation 
are  of  relatively  recent  growth,  and,  in  their  present  form,  are 
largely  the  result  of  a  compromise  between  the  conflicting 
rights  and  interests  of  belligerents  and  neutrals.  In  ancient 
times  the  very  conception  of  neutrality  was  impossible.  So 
long  as  one  powerful  state  aspired  to  or  claimed  universal 
dominion,  it  was  impossible  for  other  and  less  powerful  states 
to  maintain  that  separate,  independent  existence  which  is  es- 
sential to  the  recognition  of  state  rights,  and  so  to  the  devel- 
opment of  a  true  theory  of  neutrality.  War,  among  the  an- 
cients, was  the  normal  state  of  mankind,  in  which  all  nations 
participated,  either  as  principals  or  allies.  Had  any  ancient 
state  attempted  to  occupy  a  position  remotely  resembling 
that  of  neutrality,  according  to  the  modern  acceptation  of  the 
term,  and  had  it  attempted  to  compel  respect  to  its  neutral 
rights,  the  belligerent  against  whom  the  attempt  was  made 
would  have  regarded  it  as  an  act  of  war,  and  would  have  gov- 
erned itself  accordingly.  This  state  of  affairs  continued  until 
the  modern  idea  of  state  sovereignty  and  territorial  indepen- 
dence began  to  be  generally  recognized,  towards  the  close  of 
the  Middle  Ages.' 


'  "  Neutrals  in  their  own  country  to  belligerents  whatever  belliger- 
may  sell  to  belligerents  whatever  ents  may  agree  to  take.  And  so, 
belligerents  may  choose  to  buy.  again,  neutrals  may  convey,  in  neu- 
The  principal  exceptions  to  this  tral  ships,  from  one  neutral  port  to 
rule  are  that  neutrals  must  not  sell  another,  any  goods,  whether  con- 
to  one  belligerent  what  they  refuse  traband  of  war  or  not,  if  intended 
to  sell  to  the  other,  and  must  not  for  actual  delivery,  at  the  port  of 
furnish  soldiers  or  sailors  to  either;  destination  and  to  become  part  of 
nor  prepare,  or  suffer  to  be  pre-  the  common  stock  of  the  country 
pared,  within  their  territory,  armed  or  of  the  port." — Tht  Ber/inida,  3 
ships   or   military  or    naval   expe-  Wallace,  514. 

ditions    against    either.      So,  too,  -  Lawrence,  Int.  Law,  §  244;  Ho- 

except  goods  contraband  of  war,  or  sack,  pp.  164,  165  ;  IV  Caivo,  §§  2495 

conveyed  with  intent  to  violate  a  -2500;  Heffter,  §  152. 
blockade,  neutrals  may  transport 


378  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

Development  of  the  Neutral  Theory  among  the  Maritime  States 
of  Europe.  In  the  history  of  neutrality  a  marked  difference 
in  development  will  be  found  to  exist  between  the  maritime 
and  non-maritime  states  of  the  civilized  world.  This  differ- 
ence is  due,  in  part,  to  the  powerful  influence  exerted  by  com- 
mercial intercourse  in  the  development  of  certain  nations,  and, 
in  part,  to  the  fact  that  the  theory  of  neutral  obligation  found 
its  first  practical  application  in  the  shape  of  an  immunity  from 
capture  accorded,  in  time  of  war,  to  the  ships  and  goods  of 
non-belligerents — or  neutrals,  as  they  would  now  be  called— on 
the  high  seas.  Indeed,  the  rules  of  neutrality  on  land,  as  will 
presently  be  seen,  are  of  much  more  recent  development,  and 
did  not  come  into  existence  until  several  centuries  after  the 
exemption  of  neutral  goods  from  capture  on  the  sea  had  re- 
ceived general  international  recognition.  For  this  reason  it 
will  be  proper  to  discuss,  first,  the  development  of  the  theory 
of  neutrality  among  the  maritime  states  of  Europe. 

The  theory  of  neutrality  is  based  upon,  and  deduced  from, 
the  conception  of  a  number  of  sovereign  states,  or  political 
communities,  each  enjoying  a  separate  existence,  and  each  rec- 
ognizing the  separate  and  independent  existence  of  every 
other.  Such  conditions  were  fulfilled  by  the  Mediterranean 
cities  that  participated  in  the  revival  of  commerce  towards  the 
close  of  the  Dark  Ages;  and  it  was  among  them  that  the 
modern  theory  of  neutrality  was  developed.  The  first  concep- 
tion of  neutral  right  to  acquire  general  recognition  among 
them  seems  to  have  consisted  in  the  idea  that,  at  the  outbreak 
of  war  between  any  two  cities,  the  commerce  of  the  rest,  who 
remained  friendly  to  the  belligerents,  since  it  in  no  way  con- 
cerned the  hostile  cities,  should  undergo  the  least  possible  in- 
terruption. Out  of  this  immunity  grew  the  idea  of  the  ex- 
emption of  neutral  or  friendly  goods  from  capture  in  time  of 
war. 

These  cities  were  either  independent  communities  or  were 
situated  in  separate  states,  and  commercial  relations  had  be- 
come so  firmly  established  among  them  by  the  close  of  the 
eleventh  century  as  to  warrant  the  preparation  of  a  code  of 


NEUTRALITY  379 

sea  laws  containing  their  common  maritime  usages.  The  ear- 
hest  of  these  codes,  the  "Consolato  del  Mare,"  recognized  the 
distinction  between  the  property  of  friends  and  enemies  in 
war,  and  declared  that  the  former  was  exempt  from  capture 
and  confiscation,  even  when  found  on  an  enemy's  vessel.  If 
such  property  were  delivered  at  its  destination,  freight  was 
due  to  the  belligerent  captor  who  effected  the  delivery.  Simi- 
lar provisions  were  contained  in  the  later  sea  laws ;  indeed, 
so  long  as  maritime  commerce  was  controlled  by  the  cities  of 
southern  and  western  Europe,  the  treatment  of  neutral  prop- 
erty at  sea  was  marked  by  extreme  liberality. 

The  cities  that  were  identified  with  the  revival  of  com- 
merce engaged  in  such  pursuits  for  purely  mercenary  reasons. 
They  were  rivals  in  commerce  only,  and  none  of  them  aspired 
to  territorial,  as  distinguished  from  commercial,  dominion. 
Their  commercial  rivalry  was  keen,  however,  and  some  of  them 
asserted  claims  to  the  exclusive  control  of  certain  waters  for 
purposes  of  trade.  Conflicts  of  interest  thus  arose,  which  at 
times  resulted  in  war ;  but  as  their  commercial  interests  were, 
on  the  whole,  of  the  first  importance,  their  relations  were  more 
generally  peaceful  than  hostile.  Upon  the  outbreak  of  war 
the  greater  number  of  cities  found  it  to  be  to  their  interest  to 
refrain  from  participation  in  its  operations,  and  to  continue 
their  friendly  relations  with  both  belligerents.  The  relations 
of  the  non-belligerent,  or  neutral,  cities  with  each  other  under- 
went no  change.  They  were  at  peace,  and  simply  maintained, 
without  interruption,  their  ordinary  commercial  intercourse. 
As  the  gieater  number  of  these  cities  were  usually  at  peace,  it 
is  easy  to  see  that  it  was  to  the  general  interest  that  their 
commercial  relations  should  suffer,  during  war,  the  least  possible 
interruption.  The  necessity  of  combining  to  protect  their  mer- 
chant vessels  from  the  depredations  of  pirates  must  have  sug- 
gested to  them,  at  a  relatively  early  date,  the  desirability  of 
similar  concerted  action  to  secure  a  like  immunity  from  acts 
of  belligerency,  and  to  compel  respect  for  their  neutral  rights.* 

'  Hall,  pp.  576-579;  IVCalvo,  §§  2495-2500;  Lawrence,  Int.  Law,  §  244; 
I  Hautefeuille,  pp.  195-239. 


380  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

The  Ride  of  the  "  Consolato  del  Mare!'  Out  of  this  state  of 
international  relationsgrew  the  rule  of  the  "Consolato  del  Mare," 
that  enemy  goods  were  liable  to  capture,  and  neutral  goods 
were  exempt  from  capture,  wherever  found.  This  rule  was 
generally  accepted  by  the  commercial  cities,  and,  later,  by 
the  European  powers.  With  occasional  interruptions,  due  in 
great  part  to  treaty  stipulations,  it  continued  to  be  the  most 
generally  accepted  rule  upon  the  subject  of  the  liability  of 
property  to  capture  at  sea,  until  the  adoption  of  the  more 
liberal  rule  of  the  Declaration  of  Paris,  in  1856.' 

General  Acceptance  of  the  Rule.  England  adopted  the  rule 
at  the  organization  of  its  admiralty  courts  during  the  reign 
of  Edward  III.,  and  has  consistently  maintained  it  during  her 
subsequent  history.  In  a  small  number  of  treaties,  made 
during  the  seventeenth  and  eighteenth  centuries,  the  English 
Government  conceded  the  principle  that  free  ships  make  free 
goods ;  but  these  concessions  were  of  a  temporary  character, 
and  in  nearly  all  cases  were  terminated  by  a  positive  dis- 
avowal of  the  milder  rule.  France,  after  observing  the  rule 
of  the  "Consolato'^  for  nearly  five  hundred  years,  repudiated  it 
in  the  Maritime  Ordinances  of  168 1.  By  that  instrument  the 
rule  of  capture  was  stated  to  be  that  the  goods  of  an  enemy 
in  a  neutral  vessel  and  the  goods  of  a  friend  in  an  enemy's 
vessel  were  alike  liable  to  capture,  thus  establishing  the  rule 
that  enemy  ships  make  enemy  goods.  This  continued  to  be 
the  practice  of  France,  subject  to  some  modification  in  her 
conventional  law,  until  the  Declaration  of  Paris.  The  prac- 
tice of  Spain,  during  the  period  of  her  maritime  supremacy, 
was  similarly  severe.' 

Policy  of  the  United  States.  The  policy  of  the  United 
States,  as  indicated  in  the  decisions  of  the  Supreme  Court, 
has  been  substantially  the  same  as  that  of  England.  "  The 
two  distinct  propositions — i.  That  enemy's  goods  found  on 
board  a  neutral  ship  may  lawfully  be  seized  as  prize  of  war, 

•  Consolato  del  Mare,  chap.  273,     pp.  96-103;  IV  Calvo,  §  2495  ;  Heff- 
§§  1-9;  Manning,  pp.  279-287  ;  Ho-     ter,  §  152. 
sack,  pp.  164-167 ;    Ortolan,  liv.  ii. 


NEUTRALITY  38 1 

and,  2.  That  the  goods  of  a  neutral  found  on  board  of  an 
enemy's  vessel  are  to  be  restored — have  also  been  explicitly 
incorporated  into  the  jurisprudence  of  the  United  States,  and 
declared  by  the  Supreme  Court  to  be  founded  on  the  law  of 
nations.  The  rule,  it  was  observed  by  the  court,  rested  on 
the  simple  and  intelligible  principle  that  war  gave  a  full  right 
to  capture  the  goods  of  an  enemy,  but  gave  no  right  to  capt- 
ure the  goods  of  a  friend.  The  neutral  flag  constituted  no 
protection  to  enemy's  property,  and  the  belligerent  flag  com- 
municated no  hostile  character  to  neutral  property.  The 
character  of  the  property  depended  upon  the  fact  of  owner- 
ship, and  not  upon  the  character  of  the  vehicle  in  which  it 
was  found.  Nations,  indeed,  had  changed  this  simple  and 
natural  principle  of  public  law  by  conventions  between  them- 
selves, in  whole  or  in  part,  as  they  believed  it  to  be  for  their 
interest;  but  the  one  proposition,  that  free  ships  should  make 
free  goods,  did  not  necessarily  imply  the  converse  proposition, 
that  enemy's  ships  should  make  enemy's  goods.  If  a  treaty 
established  the  one  proposition,  and  was  silent  as  to  the  other, 
the  other  stood  precisely  as  if  there  had  been  no  stipulation, 
and  upon  the  ancient  rule.'" 

The  policy  of  the  different  departments  of  the  United  States 
Government  upon  the  question  of  maritime  capture  has  not 
been  the  same.  The  courts  of  the  United  States,  being  to 
some  extent  controlled  by  the  English  precedents  in  prize 
cases,  have,  in  the  main,  followed  the  English  rule,  as  expressed 
in  the  "  Consolato  del  Mare.'"  The  political  departments,  on  the 
other  hand,  have  constantly  endeavored  to  secure  the  greatest 
possible  immunity  from  capture  for  private  property  at  sea, 
and  to  that  end  have  endeavored  to  obtain,  by  treaty  and 
otherwise,  international  consent,  not  only  to  the  rule  that  free 
ships  make  free  goods,  but  that  «//  private  property  at  sea, 
not  contraband  of  war,  should  be  exempt  from  capture  and 
confiscation  in  time  of  war.^ 

^  The  Neretde,  gCranch,  ^SS,  4ig;  'Wheaton,  §  439!;    II  Halleck,  pp. 

Ill  Phillimore.pp.  317,  3i8;I  Kent,  308-312;  IV  Calvo,  §  2495. 

pp.  124,  125.  ^President  Pierce,  Second  Annual 

M  Kent,  pp.  127-135;    Boyd's  Message,  1854;    Marcy  Xo  Baron 


382  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

The  Principle  of  Free  Ships,  Free  Goods.     The  principle 
that  free  ships  make  free  goods  was  first  recognized  by  Holland 
during  the  early  part  of  the  seventeenth  century,  and  was  the 
result  of  the  peculiar  situation  of   that  state  as  a  European 
power.     Its  mlHtary  strength  on  land  was  far  less  in  amount 
than  that  of  the  great  states  by  which  it  was  surrounded,  and 
was  never  more  than  sufificient  to  the  task  of  securing  its  inde- 
pendent political  existence.     The  contrary,  however,  was  the 
case  at  sea,  where  the   maritime  power  of  the  republic  was 
exceeded,  if  at  all,  by  that  of  England  alone.     The   mainte- 
nance of  its  position  as  a  maritime  and  commercial  power  thus 
became  a  matter  of  the  first  importance,  and  was  so  recognized 
by  the  succession  of  able  statesmen  who  directed  the  state 
policy  of  the  United  Provinces  during  the  seventeenth  and 
eighteenth  centuries.      Having  but  little  military  strength,  it 
was  desirable  that  Holland  should  remain  neutral  in  all  Euro- 
pean wars.     It  was  still  more  desirable,  however,  that  its  im- 
mense carrying  trade  should  be  exempt  from  the  effects  of  war 
at  sea.     But  this  exemption  could  only  be  obtained  by  securing 
the  adoption  of  the  rule  that/rr^  ships  made  fr.ee  goods,  as  the 
rule  then  prevailing  was  that  of  the  "  Consolato  del  Mare,"  by 
which  the  ownership  of  property  determined  its  hability  to 
capture. 

For  the  adoption  of  a  new  rule  on  the  subject  of  maritime 
capture  the  general  consent  of  nations  was  necessary,  and  that 
consent  could  only  be  obtained  by  treaty  stipulations.  The 
efforts  of  the  Dutch  Government  were  therefore  directed  to 
that  end,  and,  as  a  result,  a  number  of  treaties  were  negotiated 
in  which  the  rule  oi  free  ships,  free  goods,  was  recognized,  and 
the  liability  to  capture  was  determined  by  the  nationality  of 
the  vessel,  and  not  by  tJie  oivnership  of  the  goods,  as  in  the 
ancient  rules.     As  Holland  was  more  generally  neutral  than 

Gerolt,  Dec.  9,  1854;    III  Dig.  Int.  with  the  United  Provinces  in  1782; 

Law,  §  385.     The  principle  of  free  with  Sweden  in  1783,  i8i6,and  1827; 

ships,  free  goods,  was  incorporated  with  Prussia  in  1785  and  1828;  with 

in  tlie  treaties  between  the  United  Spain  in  1795. 
^taicsand  France  in  1788  and  i8oq; 


NEUTRALITY  383 

belligerent,  the  adoption  of  the  latter  principle,  in  its  fullest 
extent,  would  be,  in  the  main,  advantageous  to  her  interests. 
She  would  gain  more,  as  a  neutral,  by  the  adoption  of  the  rule 
of  free  ships,  free  goods,  than  she  would  lose,  as  a  belligerent, 
by  the  adoption  of  the  rule  of  enemy  ships,  enemy  goods.  For 
this  reason,  in  some  of  her  treaties  both  of  these  principles 
were  connected,  and  the  liability  of  merchandise  to  capture  on 
the  high  seas  was  determined  by  the  nationality  of  the  vessel, 
rather  than  by  the  ownership  of  the  cargo.' 

The  principle  of  free  ships,  free  goods,  was  accepted  by  many 
of  the  less  important  commercial  states  of  Europe.  It  was 
generally  accepted  by  the  Baltic  powers,  by  France,  in  the 
Treaty  of  Ryswick,  in  1657,  and  even  by  England,  in  a  few 
treaties  negotiated  between  the  years  1658  and  1756.  From 
the  year  171 5  onward,  the  maritime  importance  of  Holland 
steadily  declined  ;  and  as  that  state  was  no  longer  directly 
interested  in  the  maintenance  of  the  new  rule,  the  treaties 
upon  which  it  had  been  based  were  not  renewed,  or  were 
suffered  to  lapse,  and  it  appeared  less  frequently  in  the  new 
treaties  which  were  negotiated,  from  time  to  time,  upon  the 
subject  of  maritime  capture.  From  the  Peace  of  Paris,  in  1763, 
until  the  outbreak  of  the  Crimean  War,  in  1853,  the  maritime 
preponderance  of  England  was  sufHcient  to  prevent  the  general 
adoption  of  any  principle  of  capture  more  liberal  or  less  severe 
than  that  contained  in  the  rule  of  the  "  Consolato  del  Mare,"  the 
justice  of  which  the  British  Government  had  always  maintained. 

At  the  outbreak  of  the  Crimean  War  the  British  Government 
announced  that  for  the  period  of  that  war  it  would  "  waive 
the  right  of  seizing  enemy's  property  laden  on  board  a  neutral 
vessel  unless  it  be  contraband  of  war."  A  similar  waiver  was 
made  by  the  PVench  Government.  In  both  cases  the  con- 
cession was  declared  to  be  due  to  a  desire  to  render  the  war 
"  as  little  onerous  as  possible  to  the  powers  with  which  they 
remained  at  peace."' 

'For  lists  of  these  treaties  see  1854,  made  by  England  and  France. 
Ill  Phillimore,  pp.  324  et  seq.  See.  also,  Marcy  to  Crampton,  Or- 

*  Joint  Declaration  of  March  28,     tolan,  liv.  ii.  pp.  464-466, 


384  THE   ELEMENTS  OF  INTERNATIONAL   LAW 

The  Declaration  of  Paris.  The  Treaty  of  Paris,  which 
terminated  the  Crimean  War,  was  signed  on  March  30,  1856. 
The  representatives  of  the  powers  that  had  been  parties  to  the 
treaty,  at  the  suggestion  of  Count  Walewski,  the  French  pleni- 
potentiary, assembled  in  conference  for  the  purpose  of  discuss- 
ing the  rules  of  maritime  capture,  and,  on  the  i6th  of  April 
following,  adopted  a  body  of  rules  modifying  the  existing  rules 
of  capture,  which  has  since  been  known  as  the  Declaration  of 
Paris.  The  rules  adopted  were  four  in  number: 
{a)  Privateering  is,  and  remains,  abolished. 
{b)  The  neutral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war. 

{c)  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  the  enemy's  flag. 

{d.)  Blockades,  to  be  binding,  must  be  effective— that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to 
the  coast  of  the  enemy. 

The  Declaration  was  signed  by  plenipotentiaries  representing 
Great  Britain,  France,  Russia,  Austria,  Sardinia,  Prussia,  and 
Turkey;  and  the  signatory  powers  further  agreed  to  bring  the 
Declaration  to  the  knowledge  of  the  states  which  had  not  taken 
part  in  the  Congress  of  Paris,  and  to  invite  them  to  accede  to  it. 
Between  the  years  1856  and  1861  the  principles  of  the  Declara- 
tion had  been  accepted  by  all  the  European  powers  except 
Spain,  and  by  all  those  on  the  western  continent  except  Mexico 
and  the  United  States.  The  three  powers  which  refused  to 
adopt  the  proposed  rules  agreed  in  rejecting  the  rule  abandon- 
ing the  practice  of  privateering,  and,  as  the  Declaration  had  to 
be  accepted  as  an  entirety,  these  states  were  thus  prevented 
from  formally  accepting  the  three  rules  to  which  they  enter- 
tained no  objection.' 

When  the  Declaration  of  Paris  was  submitted  to  the  gov- 
ernment of  the  United  States  for  adoption,  it  was  replied,  in 
behalf  of  that  power,  that,  in  their  proposed  form,  the  rules 
could  not  be  accepted  as  a  whole.     The  policy  of  the  United 

'III  Dig,  Int.  Law,  §  342,  p.  273. 


NEUTRALITY  385 

States  had  always  been  to  maintain  a  small  naval  establish- 
ment, and  its  important  commercial  interests  would  not  per- 
mit it  to  resign  the  right  of  increasing  its  power  at  sea,  at  the 
outbreak  of  war,  by  the  acceptance  into  its  naval  service  of  a 
force  of  privateers.  It  was  observed,  however,  that  if  a  rule 
were  added  to  the  Declaration  exempting  all  private  property 
from  capture  at  sea,  in  time  of  war,  the  necessity  for  the  em- 
ployment of  such  an  additional  force  would  disappear,  and  the 
United  States  would  gladly  accede  to  the  proposed  rules.'  At 
the  outbreak  of  the  War  of  the  Rebellion  an  attempt  was 
made  by  the  United  States  to  become  a  party  to  the  Declara- 
tion of  Paris,  but,  as  it  was  understood  that  its  acceptance  was 
to  include  the  Confederate  States  as  well,  the  attempt  was  not 
persisted  in.' 

Binding  Force  of  the  Declaration.  The  rules  of  the  Decla- 
ration of  Paris  upon  the  subject  of  maritime  capture,  although 
binding  upon  the  signatory  powers  alone,  have  been  generally 
accepted  as  the  rule  of  international  law  upon  the  subjects 
of  which  they  treat,  and  it  is  highly  improbable  that  a  severer 
rule  will  be  adopted  at  any  time  in  the  future.  The  adoption 
of  a  milder  rule  is  as  little  probable.  Upon  several  occasions 
it  has  been  suggested  to  amend  them,  in  the  direction  of 
greater  liberality,  by  the  adoption  of  a  rule  exempting  all  pri- 
vate property  from  capture  at  sea.  These  suggestions  have 
not  been  favorably  received  by  the  great  maritime  powers, 
however,  and  there  is  no  indication,  at  present,  that  the  rules 
of  the  Declaration  will  be  relaxed  in  such  a  way  as  to  give  to 
private  property  at  sea  any  greater  immunity  from  capture 
than  it  now  enjoys. 

At  different  times  the  justice  of  the  rules  of  the  Declaration 
of  Paris  has  been  discussed,  especially  in  England,  and  the 
opinion  has  been  advanced  that  that  power  had  unwisely  sur- 

1  III  Dig.  Int.  Law,  §  342,  p.  274.  serve  the  rules  of  the  Declaration 

"^  III   Dig.   Int.    Law,   §   342,  pp.  during  the  continuance  of  hostili- 

273-304.     "The  United  States  an-  ties."— Hall,  §  256;    Dana's  Whea- 

nounced  at  the  outbreak  of  the  re-  ton,  §  475,  note  223. 
bellion,  in  1861,  that  it  would  ob- 

25 


386  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

rendered  a  valuable  right,  without  receiving  in  return  any  cor- 
responding advantage.  It  is  difficult  to  see  how  this  ground 
can  be  maintained.  The  loss  of  private  property  at  sea,  how- 
ever great  in  amount,  rarely  affects,  to  any  material  extent, 
the  military  resources  of  a  powerful  belligerent,  and  so  rarely 
contributes  to  bring  to  an  end  an  existing  war.  It  would  be 
impossible  to  invent  a  more  effective  method  of  not  only 
crippling  but  absolutely  destroying  the  merchant  marine  of 
a  state  than  was  resorted  to,  with  the  most  complete  success, 
by  the  government  of  the  Confederate  States  during  the  War 
of  the  Rebellion.  But  the  destruction  wrought  by  the  Con- 
federate cruisers  in  no  material  way  impaired  the  military 
strength  of  the  United  States,  or  changed  the  result  of  the 
war  in  the  slightest  degree.  If  it  were  intended,  by  the  de- 
struction of  vast  amounts  of  private  property,  to  affect  the 
course  of  the  Federal  Government,  that  intention  signally 
failed  of  execution.  On  the  other  hand,  it  is  at  least  probable 
that  the  business  revival  of  the  Southern  States  has  been,  to 
an  appreciable  degree,  injuriously  affected  by  the  change  in 
carrying  trade,  which  resulted  from  the  destruction  of  the 
American  merchant  marine  during  the  War  of  the  Rebellion.' 
The  position  of  England  in  this  matter  is  still  more  difficult 
to  understand.  The  English  navy,  efficient  and  powerful  as 
it  may  be,  is  not  omnipotent,  and,  as  the  experience  of  the 
United  States  has  shown,  the  enormous  commercial  marine  of 
England  would,  in  the  event  of  war,  be  liable  to  capture  and 
destruction,  as  a  result  of  the  depredations  of  a  relatively 
small  number  of  fast-steaming  cruisers,  whose  operations  are 
more  difficult  to  check  than  is  generally  supposed."  The  pow- 
er of  a  state  to  efficiently  police  the  sea,  and  to  protect  its 
merchant  marine,  by  preventing  or  punishing  depredations 
against  it,  is  largely  overestimated.  At  no  time  in  history  has 
the  supremacy  of  England  at  sea  been  more  unquestioned 
than  during  the  period  of  the  Napoleonic  wars,  at  the  beginning 


UII  Phillimore,  §  218  ;  II  Twiss,  ^  Hall,  §   147;    II  Ferguson,  pp. 

§207.  308-326;  Lawrence,  §§  216,  217. 


NEUTRALITY  387 

of  this  century;  and  yet,  on  two  conspicuous  occasions,  when 
the  fullest  warning  of  the  enemy's  purposes  and  intentions 
had  been  given,  a  hostile  fleet  was  able,  without  particular  or 
exceptional  difificulty,  to  evade  the  whole  maritime  power  of 
England.' 

Claims  to  Exclusive  Dominion,  their  Effect  upon  the 
Development  of  the  Neutral  Theory.  As  the  assertion  and 
enforcement  of  these  claims  have  invariably  had  the  effect  of 
retarding  the  development  of  the  true  theory  of  neutral  obli- 
gations, they  will  now  be  briefly  discussed.  If  we  examine  the 
history  of  those  cities  and  states  which,  at  different  times, 
have  attained  great  maritime  or  commercial  supremacy,  it  will 
be  seen  that  they  have  always  claimed  exclusive  commercial 
dominion  over  the  seas  and  coasts  with  which  they  were  the 
first  to  develop  commercial  intercourse.  When  the  Greeks 
first  began  to  interest  themselves  in  foreign  commerce  they 
found  the  Phoenicians  in  possession  of  the  most  desirable 
coasts  of  the  Mediterranean.  They  were,  therefore,  obliged 
to  confine  their  commercial  undertakings  to  new  seas,  or  to 
parts  of  the  Mediterranean  which  their  rivals  had  not  already 
appropriated.  Neither  of  these  people  aspired  to  territorial, 
as  distinguished  from  commercial,  dominion.  The  possession 
of  the  sea-coast  sufficed  to  secure  the  latter ;  with  the  former 
they  had  no  concern.  With  the  Romans  the  case  was  entirely 
different.  They  deemed  mere  commercial  supremacy  as  of 
but  slight  importance,  and  claimed,  and  ultimately  acquired, 
universal  dominion.  With  the  downfall  of  the  Western  Em- 
pire commerce  greatly  declined,  and  at  times  almost  disap- 
peared. With  the  revival  of  civilization,  however,  commercial 
intercourse  was  re-established,  and  was  fostered  and  controlled 
by  those  cities  of  Italy  and  Spain  which  were  the  first  to  en- 
gage in  maritime  pursuits  towards  the  close  of  the  Dark  Ages. 

'"  One  of  these  occurred  in  1796,  during  a  period  of  more  than  six 

when  General  Heche  succeeded  in  weeks,  in  evading  a  no  less  skilful 

entering  Bantry  Bay,  on  the  Irish  naval  commander  than  Lord  Nel- 

coast;  the  other  in   1798,  when  a  son." — Thiers,  French  Revolution, 

formidable  French  fleet  succeeded,  vol.  iv.  pp.  67,  260  et  seq. 


388  THE  ELEMENTS   OF   INTERNATIONAL  LAW 

These  cities  soon  claimed  exclusive  dominion  over  certain 
waters  for  purposes  of  trade,  and  forbade  all  commerce  with 
such  coasts  to  the  ships  of  other  cities.  Their  right  to  such 
exclusive  intercourse  was  denied,  and  numerous  wars  were  un- 
dertaken, some  in  support  of,  and  others  in  opposition  to,  these 
claims. 

Venice  was  the  first  of  the  Mediterranean  cities  to  attain 
to  any  considerable  degree  of  commercial  supremacy,  and,  so 
early  as  the  twelfth  century,  asserted  a  right  to  the  exclu- 
sive navigation  of  the  Adriatic.  This  claim  was  sanctioned  by 
Pope  Alexander  III.,  in  1 177,'  and  was  long  maintained  against 
all  opposition.  At  a  later  period  similar  claims  were  advanced 
by  Genoa  and  Pisa.  The  discovery  of  the  sea  route  to  India 
by  Portugal,  and  of  the  western  continent  by  Spain,  largely 
reduced,  and  eventually  destroyed,  the  commercial  importance 
of  the  Mediterranean  cities,  and  transferred  the  sovereignty  of 
the  seas  to  the  two  latter  powers,  by  whom,  in  turn,  the  most 
extravagant  claims  were  asserted  to  maritime  dominion.  As 
the  claims  brought  forward  by  Spain  and  Portugal  were  in 
some  degree  conflicting,  they  were  submitted  to  the  pope, 
Alexander  VII.,  who,  in  1493,  established,  as  a  boundary 
between  them,  a  meridian  line  passing  through  a  point  100 
leagues  west  of  the  Azores  Islands.^  All  of  the  earth's  sur- 
face east  of  that  Hne  which  formed  no  part  of  the  domin- 
ions of  any  Christian  prince  was  declared  to  belong  to  Portu- 
gal;  while  all  to  the  west  of  the  same  line  was,  subject  to  a 
similar  restriction,  decreed  to  Spain.  Claims  somewhat  similar 
in  character  were  advanced,  at  a  later  period,  by  England  and 
Holland,  only  to  encounter  the  most  serious  and  obstinate  re- 
sistance, which  resulted  in  their  final  abandonment.  The  last 
instance  of  such  a  claim  being  advanced  to  any  considerable 
portion  of  the  high  seas  was  that  of  Russia,  who  asserted  the 
right  of  exclusive  navigation  of  that  part  of  the  Pacific  lying 
north  of  the  fifty-fourth  degree  of  north  latitude,  on  the  ground 

'  Azuni,  vol.  i.  p.  78;  IV  Calvo,  "  Azuni,  vol.  i.  p.  106.  See,  also, 
§§  2495-2499;  Hall,  §  208.  pp.  13,  14,  an/e. 


NEUTRALITY  389 

that  it  possessed  the  coasts  of  both  continents  above  that  line. 
This  claim,  however,  was  relinquished  upon  the  representations 
of  England  and  the  United  States,  and  has  never  been  reas- 
serted.' 

If  the  claims  which  have  been  made,  at  different  times,  to 
exclusive  maritime  dominion  be  examined,  it  will  be  found 
that  each  of  them  is  susceptible  of  being  resolved  into  two 
parts : 

(a.)  A  claim  to  a  kind  of  territorial  sovereignty  over  a  por- 
tion of  the  high  seas,  with  the  adjacent  coasts. 

(d.)  A  claim  to  the  right  of  exclusive  commercial  intercourse 
with  the  territories  whose  coasts  were  washed  by  the  waters 
over  which  jurisdiction  was  asserted. 

The  first  of  these  claims  has  been  vigorously  opposed  since 
the  middle  of  the  seventeenth  century,  and  with  such  success 
that  all  such  claims  have  long  since  been  abandoned,  never  to 
be  reasserted. 

The  second  continued  to  exist,  and  was  long  recognized  as 
just  and  equitable.  As  new  territories  were  acquired  by  dif- 
ferent European  powers,  either  by  colonization  or  by  conquest, 
the  exclusive  privilege  of  trading  with  them  was  claimed  by 
the  parent  or  conquering  state,  and,  tacitly  or  expressly,  recog- 
nized by  other  states  of  the  civilized  world. '^ 

T/ie  Monopoly  of  Colonial  Trade.  Although  the  claim  of  a 
parent  state  to  a  practical  monopoly  of  colonial  trade  was  fi- 
nally recognized,  such  recognition  was  not  conceded  without 
opposition,  nor  was  the  colonial  monopoly  itself  a  source  of 
unmixed  benefit  to  the  state  enjoying  it.  In  time  of  peace  it 
was  a  fruitful  source  of  revenue,  and  afforded  a  favorable  mar- 
ket for  the  productions  of  the  mother  country.  In  the  event 
of  war,  however,  if  the  parent  state  occupied  the  position  of  a 
belligerent,  its  vessels  engaged  in  the  colonial  trade  became 
liable  to  capture  and  confiscation,  and  it  was  impossible  to 
measure  the  resulting  loss  by  the  money  value  of  the  ships 

'See  Treaties  and  Conventions         MV  Calvo,  §§  2494-2499;   Hall, 
of  the  U.  S.  with  Foreign  Powers     §  208;  II  Twiss,  §§  208-210. 
(Washington,  1889),  pp.  931-933. 


390 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


and  cargoes  which  were  captured  by  the  enemy.  A  large  part 
of  the  belligerent's  comnierce  was  destroyed,  or  diverted  to 
other  channels,  and  was  but  slowly  revived  after  the  peace. 
To  obviate  this  attempts  were  made,  at  times,  by  several  Eu- 
ropean states,  to  transfer  their  colonial  trade  to  a  neutral  flag 
during  the  period  of  hostilities.  As  this  course  deprived  a 
belligerent  of  the  right  to  injure  his  enemy,  by  a  resort  to  one 
of  the  most  powerful  means  of  coercion  then  recognized  by 
the  laws  of  war,  such  transfers  of  trade  were  stoutly  resisted, 
chiefly  by  the  British  Government,  whose  maritime  prepon- 
derance had  become  so  firmly  established  by  the  middle  of 
the  eighteenth  century  as  to  enable  it  to  enforce  respect,  in 
so  far  as  its  own  interests  were  concerned,  to  whatever  views 
of  maritime  warfare  were  deemed  by  it  to  be  correct  and  in 
accordance  with  international  law. 

The  Rule  of  1756.  The  practice  contended  for  by  Great 
Britain,  that  a  belligerent  could  not  transfer  his  colonial  trade 
to  a  neutral  during  an  existing  war,  and  that  neutral  merchant 
vessels  engaged  in  such  trade  acquired  a  hostile  character  by 
so  doing,  and  were  thus  made  liable  to  capture  and  condem- 
nation, has  become  known  to  publicists  as  the  Rule  of  1756.' 
The  view  thus  advanced  by  Great  Britain  was  extended  to  all 
colonial  trade  with  neutrals  in  1793,  by  the  attempted  enforce- 
ment of  a  rule  that  the  colonial  trade  of  a  belligerent,  which 
that  belligerent  had  undertaken  to  throw  open  to  all  nations 
without  reserve  by  a  general  and,  on  its  face,  permanent  regu- 
lation, could  not  be  participated  in  by  neutrals,  and  that  neu- 
tral ships  engaged  in  such  trade  would  become  liable  to  capt- 
ure as  ships  of  the  enemy.  This  is  known  as  the  Rule  of  1793, 
and  its  enforcement  was  immediately  opposed  by  France  and 
Spain,  and,  at  a  later  period,  by  the  United  States.  A  princi- 
ple or  rule,  asserted,  or  even  enforced,  by  one  powerful  state, 
is  not  a  rule  of  international  law  ;    to  become  such   it   must 

ni   Halleck,   pp.   325-330;    III  \h&  Anna  Katherma,  4  Ibid.  118; 

Phillimore.    §§   221-223;     Boyd's  the     Rendsbiirg,    Ibid.     121;      the 

Wheaton,  §  508;  the /'r/;/f-f^rt',  2  C.  Vrow   Anna    Katherina,    5    Ibid. 

Rob.  52;    \\i^  Emanuel,  Ibid.  186;  161. 


NEUTRALITY  391 

receive  the  sanction  of  all,  or  nearly  all,  of  the  civilized  states 
of  the  world.  The  principle  underlying  the  Rule  of  1756  is 
now  accepted,  as  applying  to  coasting  trade,  by  the  principal 
maritime  powers.  But  the  Rule  of  1793  has  received  no  such 
general  sanction,  and  its  enforcement,  if  persisted  in,  would 
have  given  rise  to  most  serious  complications.  Its  severity, 
however,  was  relaxed  as  practical  free  trade  was  gradually  con- 
ceded to  colonies,  largely  upon  their  demand  to  enter  the  mar- 
kets of  the  world  upon  equal  terms  with  the  mother  countries.' 
Development  of  the  Theory  of  Neutrality  among  the 
Non-Maritime  States  of  Europe.  The  power  and  importance 
of  the  Mediterranean  cities  were  entirely  maritime,  and  were  due 
to  the  energy  and  industry  with  which  they  prosecuted  their 
commercial  undertakings.  They  had  but  little  power  on  land; 
they  rarely  asserted  claims  to  territorial  supremacy,  and  so 
were  rarely  engaged  in  wars,  other  than  those  caused  by  their 
conflicting  commercial  interests.  It  was  for  this  reason  that 
they  progressed  but  little,  in  their  development  of  the  theory 
of  neutrality,  beyond  the  establishment  of  the  rules  regulating 
the  subject  of  maritime  capture.  The  relations  of  the  great 
European  states,  which  were  gradually  acquiring  something  of 
their  present  territorial  form,  were  not  such  as  to  favor  the 
development  of  any  consistent  or  enduring  theory  of  neutral 
obligation.  Their  relations  were  more  generally  hostile  than 
peaceful ;  private  and  dynastic  wars  were  common,  and  the 
brief  periods  during  which  hostilities  were  interrupted  or  sus- 
pended were  usually  devoted  to  the  preparation  of  new  schemes 
of  conquest  or  dominion.  Some  progress  must  have  been  made, 
however,  as  the  necessities  of  the  great  powers  made  peace 
occasionally  desirable.  But  it  was  impossible  for  the  con- 
ception of  neutrality  to  obtain  general  recognition  until  the 
desire  of  the  powers  to  remain  at  peace  had  acquired  suffi- 
cient strength  to  become  at  least  equal  to  the  desire  for 
war   and  conquest.     In  the  absence  of  positive  evidence,  it 

'  II  Halleck,  pp.  330-339;  I  Life  and  Letters  of  Joseph  Story,  p.  287;  4 
Rob.  Adm.  Rep.  App.  A. 


392  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

is  fair  to  presume  that  the  rudiments  of  the  theory  were  first 
recognized  by  those  states  which  became  neutral  by  reason  of 
their  distance  from  the  theatre  of  war,  and  from  a  consequent 
lack  of  direct  interest  in  the  war  or  its  results.  When  the 
principle  of  the  balance  of  power  first  began  to  be  understood, 
it  seems  to  have  been  regarded  as  possible  to  maintain  it  in  no 
other  way  than  by  waging  war  against  the  state,  or  states, 
which  threatened  it.  Indeed,  it  was  not  merely  threatened, 
it  was  repeatedly  attacked,  and  was  in  constant  danger  of 
overthrow,  which  could  be  effectively  prevented  only  by  force 
of  arms.  This  state  of  affairs  contributed  powerfully  to  retard 
the  growth  of  the  theory  of  neutrality,  since  every  important 
state  in  Europe  was  obliged  to  take  part,  as  principal  or  ally, 
in  the  numerous  wars  which  were  undertaken  whenever  the 
equilibrium  was  disturbed.' 

Influence  of  England  upon  the  Development  of  the  Modern 
Theory  of  Neutrality.  The  insular  situation  of  England,  so 
placed  as  to  be  secure  from  attack  except  by  sea,  enabled, 
and  to  some  extent  constrained,  that  power  to  adopt  a  policy 
of  partial  abstinence  from  interference  in  Continental  affairs, 
and  to  decline  taking  part  in  Continental  wars  in  which  it  had 
no  important  interests  at  stake.  Not  only  was  England  able 
to  decline  participation  in  such  wars,  thus  placing  her  in  a 
position  of  practical  neutrality,  but  her  power  on  land  and 
sea  was  so  great  as  to  enable  her  to  insist  upon  her  neutrality 
being  respected  by  belligerents.  She  thus  became,  to  a  cer- 
tain extent,  an  advocate  of  neutrality,  and  an  example  to  other 
powers  of  the  advantage  of  remaining  neutral.^ 

General  Acceptance  of  the  Modern  Theory  in  the  Sev- 
enteenth Century  :  its  Later  History.  Although  its  prog- 
ress had  been  extremely  slow,  the  principle  of  neutrality  had 
received  such  general  recognition  by  the  middle  of  the  sev- 
enteenth century  as  to  lead  Grotius  to  devote  a  portion  of  his 
work  to  a  discussion   of  the  rights   and   duties  of  neutrals. 

'  Hall,  §§  209,  210;  II  Ferguson,  '  IV  Calvo,   §§  2499,  2500;  Hall, 

pp.   511-515;     IV  Calvo,  §§  2495-     §§208-217. 
2538  ;  Lawrence,  §  244. 


NEUTRALITY  393 

From  that  time  its  progress  was  more  rapid.  The  Treaty  of 
Westphalia  largely  diminished  the  power  and  influence  of  the 
pope  in  secular  affairs,  and  enabled  the  intercourse  of  the 
European  states  to  assume  a  more  normal  character.  Wars 
became  less  frequent,  and  were  more  closely  restricted  in  their 
operations  and  effects  to  the  states  which  were  immediately 
concerned  in  them.  The  states  which  chose  to  occupy  the 
position  of  neutrals  at  the  outbreak  of  war  steadily  increased 
in  number,  and  were  led  to  insist  more  strongly  upon  their 
rights  being  respected  by  belligerents. 

It  was  during  this  period  that  the  Dutch  became  interested 
in  the  amelioration  of  the  rules  of  maritime  capture.  Their 
efforts  were  not  permanently  successful,  however,  and,  as  their 
influence  declined,  that  of  the  United  States  began  to  be  put 
forth  in  advocacy  of  the  same  cause.  Their  independence 
had  no  sooner  been  recognized  than  they  began  to  assume 
importance  as  a  commercial  power.  The  tendencies  of  the 
new  state  were  altogether  peaceful.  Its  distance  from  Eu- 
rope, not  less  than  its  peculiar  governmental  institutions,  se- 
cured it  an  almost  complete  immunity  from  interference  in 
European  affairs,  and  enabled  its  people  to  devote  their  ener- 
gies to  projects  of  internal  development  and  to  the  exten- 
sion of  their  already  important  commercial  relations.  The 
foreign  policy  of  the  United  States  was,  from  the  first,  one 
of  strict  non -participation  in  questions  of  strictly  European 
concern.  Every  consideration,  therefore,  of  material  interest 
and  territorial  position  induced  the  new  republic  to  occupy 
an  attitude  of  neutrality  in  all  wars  of  European  origin.  The 
justice  and  advantage  of  this  policy  were  fully  appreciated 
by  those  who  directed  its  foreign  affairs,  and  so  thoroughly 
were  the  principles  of  neutral  obligation  understood  by  them 
that  the  early  proclamations  of  neutrality  issued  by  the  United 
States  not  only  served  to  establish  the  permanent  neutral  policy 
of  that  power,  but  were  soon  generally  accepted  as  furnishing 
an  enduring  standard  of  neutral  right  and  duty.' 

'  Creasy,  p.  572 ;  I  PhilHmore,  pp.  54-60;  IV  Calvo,  §§  2495-2543. 


394         "^he  elements  of  international  law 

Forms  of  Neutral  Obligation 

Gradations  of  Neutrality.  The  crude  and  imperfect  views 
of  neutral  duty  which  formerly  prevailed  admitted  of  grada- 
tions, or  degrees,  of  neutral  obligation.  These  were,  in  sub- 
stance, violations  of  neutrality,  and,  as  such,  are  no  longer 
sanctioned  by  the  practice  of  nations.  Such  was  the  qualified 
neutrality  of  certain  European  states  during  the  last  century, 
by  which  the  obligation  to  remain  neutral  was  qualified  by  a 
previous  treaty  with  one  of  the  belligerents,  stipulating  to  fur- 
nish him  with  certain  aid  in  men,  money,  or  war  material  in  the 
event  of  a  particular  war,  or  upon  the  occurrence  of  hostilities 
of  any  kind  with  any  state.  Such  action  would  not  now  be 
tolerated  ;  and  a  state  entering  into  such  treaty  engagements 
would  be  regarded  as  an  ally  of  the  enemy  so  soon  as  it  under- 
took to  carry  into  effect  its  treaty  stipulations.* 

Permanent  Neutrality.  The  status  of  permanent  neutrality 
occupied  by  Switzerland  and  Belgium  is  in  no  way  repugnant 
to  international  law.  The  exceptional  circumstances  in  each 
case  are  to  some  extent  based  upon  the  size  and  territorial 
position  of  these  states,  upon  their  inferior  military  power  as 
compared  with  the  great  states  by  which  they  are  surrounded, 
and  to  a  certain  extent,  also,  upon  considerations  having  to 
do  with  the  preservation  of  the  European  balance  of  power." 

Armed  Neutrality.  An  armed  neutrality  is,  in  fact,  an  alli- 
ance of  several  powers,  usually  of  a  defensive  character,  though 
this  is  by  no  means  essential.  The  purpose  of  such  an  alliance 
is  to  secure  the  maintenance  of  certain  views  of  neutral  right 
which  are  believed  to  be  in  danger  or  whose  justice  is  likely 
to  be  questioned.  The  most  striking  historical  examples  of 
such  alliances  are  those  of  the  armed  neutralities,  of  the  north- 
ern European  powers,  of  1780  and  1800.    These  alliances  were 

'  II  Halleck,  pp.  174, 175;  Creasy,         *  Creasy,  pp.  575.  576;   Boyd's 
pp.  576,  577 ;  Boyd's  Wheaton,  §§     Wheaton,  §  423 ;  Woolsey,  §  163 ; 
415-422;  Woolsey,  §  163;  Manning,      IV  Calvo,  §§  2596-261 1. 
pp.  223-238;  I  Kent,  pp.  116,  117; 
IV  Calvo,  §§  2594,  2595. 


NEUTRALITY  395 

made  to  defend  the  principle  of  free  ships,  free  goods,  which 
had  been  adopted  by  treaties  between  the  Baltic  powers,  and 
which  was  opposed  by  England,  that  power  being,  on  both 
occasions,  a  belligerent.  Although  the  purpose  of  the  alliance 
was  not  effected  on  either  occasion,  the  agitation  of  the  ques- 
tion continued,  and  without  doubt  contributed  materially  to 
bring  about  the  adoption  of  the  Declaration  of  Paris.  If  the 
commercial  interests  of  several  nations  are  threatened  by  un- 
just or  unlawful  measures,  on  the  part  of  a  belligerent,  which 
they  deem  unjust  or  dangerous,  there  can  be  no  question  of 
their  right  to  secure  their  menaced  interests  by  such  combi- 
nations as  seem  best  calculated  to  accomplish  the  purpose.' 

Strict  Neutrality.  As  at  present  understood,  a  state,  in 
becoming  neutral,  occupies  a  position  of  strict  neutrality. 
It  rigidly  abstains  from  aiding  either  belligerent,  or  from  ren- 
dering to  either  of  them  any  service,  however  slight  or  imma- 
terial, which  is  calculated  to  assist  him  in  his  military  opera- 
tions. The  friendly  relations  existing  at  the  outbreak  of  the 
war  are  not  interrupted,  and  it  is  to  secure  the  continuance  of 
such  relations  that  a  neutral  state  becomes  charged  with  cer- 
tain duties  during  war  which  do  not  exist  during  peace.  These 
obligations  are  the  measure  of  a  neutral's  duty  in  war.  They 
are  determined  by  international  law,  and  have  the  same  bind- 
ing force  upon  all  states.  A  failure  in  the  performance  of 
these  duties  is  an  injury  to  the  particular  belligerent  who  suf- 
fers by  the  failure  of  a  neutral  state  to  fulfil  its  obligations. 
These  obligations  have  to  do  in  part  with  the  conduct  of  the 
neutral  state  in  its  capacity  as  a  body  corporate,  and  in  part 
with  the  conduct  of  persons  within  its  jurisdiction.^ 

Neutral  Duty  of  a  State.  In  the  general  discussion  of  the 
neutral  relation,  it  is  proper  to  observe  at  this  point  that  a 
distinction  is  made  between  the  acts  of  a  state,  in  violation  of 

■  II  Twiss,  pp.  158,  197,  268;  Hall,  Manual,  §§  54-58;   Vattel,  liv.  iii. 

pp.652, 655, 692, 707, note;  III  Philli-  chap.  vii.  §  104;  Boyd's  Wheaton, 

more, pp. 335-352;  Boyd's Wheaton,  §§  435-439;  I  Kent,  pp.  116,  117; 

§§  450,  453,  527;  IV  Calvo,  §§  2638.  Woolsey,  §§  164,  165. 

»  III  Phillimore,  p.  226;  Walker, 


396  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

its  neutrality,  and  the  acts  of  its  citizens  or  subjects  in  their 
relations  with  the  governments  of  the  belligerent  powers/  A 
state,  in  its  corporate  capacity,  is  not  permitted  to  give  any 
material  aid  to  either  belligerent,  or  to  furnish  money,  ships, 
troops,  subsistence,  or  munitions  of  war,  or  to  render  any  as- 
sistance which  is  likely  to  be  useful  to  such  belligerent  in  his 
military  operations.  A  neutral  state,  therefore,  cannot  permit 
its  ports  or  territorial  waters  to  be  used  as  a  base  of  hostile 
operations,  or  as  depots  of  supply  of  articles  susceptible  of 
warlike  use.  It  is  forbidden  to  allow  the  enlistment  of  men, 
or  the  organization  or  equipment,  wholly  or  in  part,  of  hostile 
expeditions,  by  sea  or  land,  within  its  territorial  limits.'' 

Some  of  these  acts  being,  in  substance,  acts  of  sovereignty, 
are  forbidden  alike  in  peace  and  war.  Others  are  permitted 
in  peace,  but  are  forbidden  in  time  of  war.  The  principle  un- 
derlying the  latter  class  is  this:  Any  substantial  aid  or  service 
which  contributes  to  the  success  of  the  military  operations 
of  one  belligerent  enables  him  to  inflict  an  injury  upon  his 
enemy  with  whom  the  neutral  is  at  peace.  The  neutral  state, 
therefore,  in  a  more  or  less  direct  manner,  has  injured,  or  con- 
tributed to  injure,  a  friend.  As  every  state  is  the  exclusive 
judge  as  to  what  injuries  it  shall  regard  as  furnishing  just 
cause  for  war,  a  neutral  state  may  in  this  way,  by  a  single  act 
of  service,  become  a  party  to  an  existing  war.  It  is  easy  to 
see,  therefore,  that  if  it  were  permitted  to  render  such  ser- 
vices with  impunity,  every  important  war  would,  sooner  or 
later,  involve  all  neutral  states  in  its  operations,  and  so  one 
of  the  chief  purposes  of  international  law  would  fail  of  attain- 
ment. War  would  again  become  the  rule,  as  in  ancient  times, 
and  for  much  the  same  reason.  Permanent  peace  would  be 
impossible,  and  the  relations  of  states  would  be  subjected  to 
a  constant  strain  which  would  seriously  affect  their  pros- 
perity and  material  development.  The  principal  of  the  meas- 
ures  of  prevention  to  which  states  are   compelled  to  resort 

'  Creasy,  pp.  590-595.  IV  Calvo,  §  2593 ;    Vattel,  liv.  ill. 

'  III  Phillimore,  pp.  226-242;  II     chap.  vii.  §§  104,  118. 
Halleck,  p.  305  ;    Hall,  pp.  80-86; 


NEUTRALITY  397 

in  order  to  secure  the  observation  of  neutrality  will  be  dis- 
cussed. 

(i.)  Enlistment  of  Troops  in  Neutral  Territory.  It  has 
been  seen  from  the  definition  of  citizenship  and  the  discus- 
sion of  the  forces  that  may  be  employed  in  war  that  the 
armies  of  a  belligerent  are,  or  should  be,  in  great  part  com- 
posed of  his  own  citizens  or  subjects.  The  attempt,  there- 
fore, to  create  a  military  force  by  the  enlistment  of  troops  in 
neutral  states,  always  regarded  with  suspicion,  is  now  gener- 
ally looked  upon  as  a  serious  violation  of  the  rules  of  inter- 
national law.  The  territory  and  waters  of  a  neutral  state  are 
sacred  and  inviolable  because  they  are  neutral  and  pertain  to 
a  state  which  refrains  from  rendering  assistance  to  either  bel- 
ligerent at  the  expense  of  the  other.  When,  therefore,  the 
territory  of  a  neutral  is  used  by  one  belligerent  as  a  recruit- 
ing-ground to  the  disadvantage  of  the  other,  there  is  a  viola- 
tion of  the  neutral  obligation,  and  such  territory  ceases  to 
be  neutral  and  becomes  to  that  extent  the  territory  of  the 
enemy.' 

The  practice  of  furnishing  troops  or  permitting  their  enlist- 
ment in  neutral  territory  was  more  common  in  former  times 
than  it  is  at  present.  During  the  Middle  Ages,  "companies," 
as  they  were  called,  of  freebooters  were  formed  under  some 
adventurous  captain,  and  sold  their  services,  without  regard 
to  the  cause,  to  any  belligerent  who  paid  for  them — not  infre- 
quently to  both  sides  in  succession  during  the  continuance  of 
the  same  war.  At  a  later  period,  not  only  did  the  English 
troops  serve  against  the  Spaniards  during  the  revolt  of  the 
Netherlands,  but  six  thousand  Scotchmen  fought  under  the 
standard  of  the  Marquis  of  Hamilton  in  the  Thirty  Years' 
War,   in  Germany,  in  which   contest  England  was  a  neutral.* 

'  Hall,  §  218;  I  Kent,  pp.  1 17-124;  471;  II  Twiss,  §224;  IV  Calvo,  §§ 

Manning,  pp.  224-240;  III  Philli-  2619-2623. 

more.  pp.  233-237;  Creasy,  pp.  587-  =  The  furnishing  of  troops  by  a 

589;   Boyd's   Wheaton,    5J  436  ;    II  neutralto  a  belligerent  was,  in  for- 

Halleck,  pp.  184-195;  Vattel,  liv.  mer  times,  held  to  be  justified  by 

iii.  chap.  ii.  §  15;  Risley,  pp.  191,  the  stipulations  of  a  treaty,  made 

192;  the  Gran  Para,  7  Wheaton,  in  time  of  peace,  but  with  a  view 


398 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


Still  later  England  procured  the  services  of  German  mercena- 
ries, who  were  employed  in  America  during  the  war  of  the 
Revolution, 

These  practices,  which  have  long  been  disfavored,  are  now 
strictly  forbidden  as  a  flagrant  violation  of  its  neutrality  on 
the  part  of  the  state  which  permits  them.  With  a  view  to 
make  such  prohibition  effective,  the  act  of  enlisting  troops  for 
service  in  the  armies  of  a  belligerent  is  now  made  the  subject 
of  prohibitory  legislation.  The  neutrality  laws  of  England 
and  the  United  States,  for  example,  forbid,  under  severe  pen- 
alties, the  enlistment  of  soldiers  or  sailors  within  their  terri- 
tories, by  the  agents  of  one  belligerent,  for  service  in  its  land 
or  naval  forces  against  the  other,  or  against  a  power  with 
which  the  neutral  is  at  peace.' 


to  the  eventuality  of  war.  The 
troops  so  furnished  in  pursuance 
with  the  terms  of  a  treaty  were  re- 
garded as  enemies,  but  not  the 
state  which  furnished  them.  The 
execution  of  such  a  treaty,  at  the 
present  time,  would  operate,  at  the 
outbreak  of  war,  to  convert  the 
states  which  were  parties  to  it  into 
allies,  and  would  deprive  the  state 
furnishing  the  troops  of  its  charac- 
ter as  a  neutral  from  the  date  upon 
which  the  stipulated  assistance  was 
furnished.— Ill  Phillimore,  pp.  233, 
234;  Manning,  pp.  227-237  ;  Vattel, 
liv.  iii.  chap.  vii.  §  1 10. 

'  The  law  of  the  United  States 
on  the  subject  of  foreign  enlist- 
ments will  be  found  in  §§  5281 
and  5282  of  the  Revised  Stat- 
utes :  "  Every  citizen  of  the  United 
States  who,  within  the  territory  or 
jurisdiction  thereof,  accepts  and 
exercises  a  commission  to  serve  a 
foreign  prince,  state,  colony,  dis- 
trict, or  people,  in  war,  by  land  or 
by  sea,  against  any  prince,  state, 
colony,  district,  or  people  with 
whom  the  United  States  are  at 
peace,  shall  be  deemed  guilty  of  a 
high  misdemeanor,    and   shall   be 


fined  not  more  than  two  thousand 
dollars,  and  imprisoned  not  more 
than  three  years."'* — §  5281  Rev. 
Stat.  (Act  of  April  20,  1818,  3 
Stat,  at  Large,  p.  447).  "  Every 
person  who,  within  the  territory 
or  jurisdiction  of  the  United 
States,  enlists  or  enters  himself, 
or  hires  or  retains  another  person 
to  enlist  or  enter  himself,  or  to  go 
beyond  the  limits  or  jurisdiction 
of  the  United  States  with  intent 
to  be  enlisted  or  entered  in  the 
service  of  any  foreign  prince,  state, 
colony,  district,  or  people,  as  a 
soldier,  or  as  a  marine  or  seaman, 
on  board  of  any  vessel  of  war,  let- 
ter of  marque,  or  privateer,  shall 
be  deemed  guilty  of  high  misde- 
meanor, and  shall  be  fined  not 
more  than  one  thousand  dollars, 
and  imprisoned  not  more  than 
three  years.""— §   2   Ibid.   (§  5282 

"  "  The  act  of  April  30,  1818,  like 
that  of  Jinie  5,  1794,  was  intended  to  se- 
cure, beyond  all  risk  of  violation,  the 
neutrality  and  pacific  policy  which  they 
consecrate  as  our  fundamental  law." — 
III  Opin.  Att.-Gen.  p.  741. 

i"  ' '  The  enlistment  of  seamen  or  others 


NEUTRALITY 


399 


The  purpose  of  such  legislation  as  that  above  described 
is  to  prevent  organized  efforts  to  secure  the  enlistment  of 
troops,  by  belligerent  agents,  in  neutral  territory.  Neutral 
governments,  however,  are  not  held  responsible  for  the  un- 
organized and  unauthorized  departure  of  individual  citizens 
with  intent  to  serve  in  the  armies  of  a  particular  bellig- 
erent.* 

The  individual  citizen,  by  so  doing,  forfeits,  while  in  such  bel- 


Rev.  Stat.)-  For  English  statutes 
on  the  same  subject,  see  3  James 
I.  chap.  iv. ;  9  George  II.  chap. 
XXX.;  29  George  II.  chap.  xvii.  ; 
59  George  III.  chap.  Ixix.  (18 19); 
33  and  34  Vict.  chap.  xc.  "  Some 
other  states  rely  upon  a  general 
prohibition  to  their  subjects,  and 
an  intimation  that,  by  disobedi- 
ence, they  will  forfeit  all  right 
and  title  to  the  protection  of 
their  government  as  against  the 
measures  of  reprisal  against  them 
which  a  foreign  state  may  take. 
Some  others  rely  upon  the  general 
terms  of  their  municipal  laws  be- 
ing so  interpreted,  in  their  applica- 

for  marine  service  on  Mexican  steamers 
in  New  York,  they  not  being  Mexicans 
transiently  within  the  United  States,  is 
a  clear  violation  of  this  section,  and  the 
persons  enlisted,  as  well  as  the  officers 
enlisting  them,  are  liable  to  the  penal- 
ties thereby  incurred." — IV  Ibid.  p.  336. 
"  This  section  applies  to  foreign  con- 
suls raising  troops  in  the  United  States 
for  the  military  service  of  Grea  t  Britain." 
. — VII  Ibid.  p.  367.  "  It  does  not  apply  to 
those  who  go  abroad  for  foreign  enlist- 
ment, or  to  those  who  transport  such 
persons." — U.S.z'i'.Kazinski,  2  Sprague, 
7.  ' '  The  enlistment  must  be  made  with- 
in the  territory  of  the  United  States,  and 
the  section  does  not  apply  to  one  who 
goes  abroad  with  intent  there  to  enlist." 
— Ibid.  "  The  words  '  soldier '  and  '  en- 
list '  as  used  in  this  section  are  to  be 
understood  in  their  technical  sense." 
—Ibid. 


tion  to  a  particular  case,  by  courts 
of  justice,  as  to  punish  such  offend- 
ers, usually  on  the  ground  that 
their  conduct  tends  to  embroil  the 
relations  and  increase  the  obliga- 
tions of  their  government  towards 
the  foreign  state,  the  enemy  of  the 
assisted  belligerent." — III  Philli- 
more,  pp.  277-285  ;  Report  of  Neu- 
tality  Laws  Commissioners  (Eng.), 
1868. 

'  Henfield's  Case.  Henfield  was 
a  sailor,  of  American  citizenship, 
who  shipped  in  the  French  priva- 
teer Citizen  Genet,  at  Charleston, 
S.  C,  while  France  was  at  war  with 
England,  and  was  indicted  at  com- 
mon law  for  enlisting  in  violation 
of  the  treaties  of  the  United  States. 
The  judges  ruled  that  the  act 
charged  was  a  crime.  In  defence, 
however,  it  was  shown  that  Hen- 
field  enlisted  before  the  proclama- 
tion, in  ignorance  of  the  law,  and, 
when  told  of  its  illegality,  had  ex- 
pressed his  regret.  He  was  ac- 
quitted by  the  jury.  This  trial  was 
promoted  by  the  administration 
of  Washington  with  earnestness, 
Hamilton  lending  his  aid  out  of 
court.  It  was  regarded  as  impor- 
tant, chiefly  because  M.  Genet  un- 
dertook to  protect  Henfield  from 
trial,  and  to  deny  that  his  act  was 
an  indictable  offence. — Wharton's 
State  Trials  (U.  S.),  p.  48,  cited  in 
Dana's  Wheaton,  §  439,  note  215. 
See,  also,  U.  S.  For.  Rel.  1885,  p. 
160. 


400  THE   ELEMENTS  OF  INTERNATIONAL  LAW 

ligerent  service,  the  privileges  of  his  local  citizenship  and  the 
protection  of  his  native  government.' 

Responsibility  of  a  Neutral  State  for  the  Acts  of  its 
Subjects.  A  different  rule  applies  to  the  conduct  of  the  sub- 
jects of  a  neutral  state  than  is  applied  to  the  neutral  state  itself, 
in  its  relations  with  the  belligerents.  It  has  been  seen  that  the 
restrictions  to  which  neutral  states  are  subject  are  such  as  will 
prevent  them  from  aiding  either  belligerent  in  his  military 
operations,  and,  at  the  same  time,  be  the  smallest  possible 
consistent  with  the  purpose  of  the  war.  The  subjects  of  a 
neutral  state  are  engaged  in  many  different  occupations  at  the 
outbreak  of  hostilities.  Most  of  these  are  in  no  way  affected 
by  the  existence  or  non-existence  of  war.  Some  neutral  sub- 
jects, however,  are  engaged  in  the  manufacture,  production,  or 
distribution  of  certain  articles,  intended  primarily  for  warlike 
uses,  which  become  contraband,  and  so  liable  to  capture  and 
condemnation  by  a  belligerent,  if  found  at  sea  e7i  route  to  a 
hostile  destination.  Others  are  engaged  in  trade  with  certain 
ports;  with  such  ports  a  belligerent,  by  an  exercise  of  the 
right  of  blockade,  may  absolutely  prohibit  commercial  inter- 
course. In  all  other  respects  their  undertakings  are  innocent, 
and  are  not  interrupted  or  affected  by  the  fact  of  war.  The 
manufacture  of  contraband  articles,  and  even  their  sale,  in 
neutral  jurisdiction,  continues  to  be  an  innocent  and  lawful 
occupation.  The  neutral  state  itself  ought  not  to  be  expected 
to  interfere  with  the  pursuits  of  its  subjects,  so  long  as  they 
are  not  likely  to  compromise  the  position  of  neutrality  which 
it  assumed  at  the  outbreak  of  the  war.  The  powers  placed  in 
the  hands  of  the  belligerents  to  blockade  the  ports  of  an  enemy, 
to  search  neutral  vessels  on  the  high  seas,  and  to  seize  and 
condemn  such  portions  of  their  cargoes  as  are  contraband  of 
war,  or  are  destined  to  a  blockaded  port,  are  ample  to  protect 
them  from  being  injured  by  the  acts  of  individuals.     If  they 

•Boyd'sWheaton,  §439;  Creasy,  Criminal  Law,  pp.  905-910;   Hall, 

p    600  :      U.     S.    vs.    Kazinski.    2  pp.  600,  601  ;     Risley,  pp.  191-193 

Sprague,  7  ;    8  Law  Rep.  254  ;  VII  III  Dig.  Int.  Law,  §§  390-395- 
Opin.  Att.-Gen.  p.  367  ;   Wharton's 


NEUTRALITY  4OI 

do  not  or  cannot  make  their  powers  effective,  they  cannot,  of 
right,  expect  neutral  states  to  assist  them  in  their  endeavors. 
Nor  can  they  expect  neutrals  to  resort  to  severe  police  meas- 
ures against  their  own  subjects  in  a  matter  with  which  they 
have  no  direct  concern.' 

Views  of  England  and  the  United  States.  The  principle 
involved  was  well  stated  by  Mr.  Webster  in  his  reply  to  the 
Mexican  Government,  which  had  complained  of  certain  al- 
leged violations  of  neutrahty,  on  the  part  of  individuals,  in 
the  supply  of  arms  to  Texas,  then  at  war  with  Mexico.  "It 
is  not  the  practice  of  nations  to  prohibit  their  own  subjects 
by  previous  laws,  from  trafficking  in  articles  contraband  of  war. 
Such  trade  is  carried  on  at  the  risk  of  those  engaged  in  it, 
under  the  Uabilities  and  penalties  prescribed  by  the  law  of  na- 
tions or  particular  treaties.  If  it  be  true,  therefore,  that  citizens 
of  the  United  States  have  been  engaged  in  a  commerce  by 
which  Texas,  an  enemy  of  Mexico,  has  been  supplied  with 
arms  and  munitions  of  war,  the  government  of  the  United 
States,  nevertheless,  was  not  bound  to  prevent  it ;  could  not 
have  prevented  it,  without  a  manifest  departure  from  the  prin- 
ciples of  neutrality,  and  is  in  no  way  answerable  for  the  con- 
sequences. ,  .  .  The  eighteenth  article  (of  the  treaty  between 
the  United  States  and  Mexico)  enumerates  those  commodities 
which  shall  be  regarded  as  contraband  of  war  ;  but  neither  that 

'  "  Our  citizens  have  always  been  nounced  in  the  President's  procla- 

free   to    make,   vend,    and   export  mation  —  that   of   confiscation    of 

arms.     It  is  the  constant  occupa-  such  portion  of  these  arms  as  shall 

tion  and  livelihood  of  some  of  them,  fall  into  the  hands  of  the  belligerent 

To  suppress  their  callings — the  only  powers  on  their  way  to  the  ports  of 

means,  perhaps,  of  their  subsistence  their  enemies." — Jefferson  to  Brit- 

— because  a  war  exists  in   foreign  ish    Minister,     May    15,    1793,    III 

and  distant  countries,  in  which  we  JelTerson's    Works,    pp.    558-560, 

have  no   concern,  would  scarcely  I  Amer.  State  Pap.  (For.  Rel.),  pp. 

be  expected.     It  would  be  hard  in  69,  147  ;  Treasury  Circular,  August 

principle  and   impossible  in  prac-  4,    1793,   I  Amer.  State  Pap.  (For. 

tice.    The  law  of  nations,  therefore,  Rel),  p.  140;  Pickering  to  French 

respecting  the  rights  of  those  at  Minister,   May   15,    1796,    I    Amer. 

peace,  does  not  require  from  them  State  Pap.  (For.  Rel.),  p.  649;    III 

such  an   internal   derangement  of  Dig.  Int.  Law,  §  391  ;    Hall,  §  218; 

their   occupations.     It  is  satisfied  II  Twiss,  §  232. 
with    the    external    penalty    pro- 


402  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

article  nor  any  other  imposes  on  either  nation  any  duty  of 
preventing,  by  previous  regulation,  commerce  in  such  articles. 
Such  commerce  is  left  to  its  ordinary  fate,  according  to  the 
law  of  nations." ' 

Mr.  Layard,  the  solicitor-general  of  the  British  Government, 
in  a  speech  in  the  House  of  Commons,  adopted  the  view  above 
stated,  and  added,  "  The  only  law  which  enables  her  Majesty's 
Government  to  interfere  in  such  cases  is  called  the  Foreign 
Enlistment  Act,  and  the  whole  nature  and  scope  of  that  act  is 
sufificiently  and  shortly  set  out  in  its  title.  It  is  '  An  act  to 
prevent  the  enlisting  and  engagement  of  her  Majesty's  sub- 
jects to  serve  in  a  foreign  service,  and  the  fitting-out  or  equip- 
ping in  her  Majesty's  dominions  of  vessels  for  warlike  pur- 
poses, without  her  Majesty's  license.'  That  act  does  not 
touch,  in  any  way  whatever,  private  vessels  which  may  carry 
cargoes,  contraband  or  not  contraband,  between  this  country 
and  any  port  in  a  belligerent  country,  whether  under  blockade 
or  not ;  and  the  government  of  this  country,  and  the  govern- 
ments of  our  colonial  possessions,  have  no  power  whatever  to 
interfere  with  private  vessels  under  such  circumstances. 

"  It  is  perfectly  true  that  in  the  Queen's  proclamation  there 
is  a  general  warning  at  the  end,  addressed  to  all  the  Queen's 
subjects,  that  they  are  not,  either  in  violation  of  their  duty  to 
the  Queen,  as  subjects  of  a  neutral  sovereign,  or  in  violation  or 
contravention  of  the  law  of  nations,  to  do  various  things,  one 
of  which  is  carrying  articles  considered  and  deemed  to  be  con- 
traband of  war,  according  to  law  or  the  modern  usages  of  na- 
tions, for  the  use  or  service  of  either  of  the  contending  parties. 
That  warning  is  addressed  to  them  to  apprise  them  that  if 
they  do  these  things  they  will  have  to  undergo  the  penal  con- 
sequences by  the  statute,  or  by  the  law  of  nations,  in  that 
behalf  imposed  or  denounced.  In  those  cases  in  which  the 
statute  is  silent  the  government  is  powerless,  and  the  law  of 
nations  comes  in. 

'  Lawrence's   Wheaton,   p.   813,     Thompson,  July  8,  1842;   III  Dig. 
note,  citing  Webster's  Works,  vol.      Int.  Law,  §  391. 
yi.  p.   452,  Letter   of  Webster  to 


NEUTRALITY  403 

*'  The  law  of  nations  exposes  such  persons  to  have  their 
ships  seized  and  their  goods  taken  and  subjected  to  confisca- 
tion, and  it  further  deprives  them  of  the  right  to  look  to  the 
government  of  their  own  country  for  protection.  And  this 
principle  of  non-interference  in  things  which  the  law  does  not 
enable  the  government  to  deal  with,  so  far  from  being  a  viola- 
tion of  the  duty  of  neutrality — which  the  government  is  anxious 
to  comply  with — is  in  accordance  with  all  the  principles  which 
have  been  laid  down  by  jurists,  and  more  especially  by  the 
great  jurists -of  the  United  States."  ' 

Continental  View  upon  the  Subject  of  Governmental  Control 
of  the  Acts  of  Individuals.  The  views  above  expressed  are 
those  which  have  long  been  held  upon  this  subject  in  Eng- 
land and  the  United  States.  Most  Continental  writers  are  at 
variance  with  this,  and  contend  that  more  or  less  of  direct 
governmental  interference  is  necessary.  This  difference  of 
view  arises  from  the  fact  that  the  governments  of  nearly  all 
the  Continental  states  of  Europe  are  highly  centralized  in 
character,  and  all  commercial  undertakings  are  therefore  sub- 
ject to  a  more  or  less  complete  governmental  supervision  and 
control.  This  is  the  case  in  time  of  peace,  and  is  an  incident 
of  internal  administration.  In  time  of  war  it  is  extremely 
easy  for  any  of  these  governments  to  regulate,  or  even  to  ef- 
fectually prohibit,  contraband  trade  on  the  part  of  its  subjects, 
if  it  is  deemed  desirable  to  do  so  as  a  matter  of  state  policy. 
In  England  and  the  United  States  no  such  supervision  exists 
in  time  of  peace ;  and  it  could  be  established,  in  time  of  war, 
only  as  the  result  of  legislation  to  that  effect,  and  could  be 
maintained  only  at  considerable  expense  and  at  the  constant 
risk  of  violating  some  of  the  existing  guarantees  of  individual 
right.' 

'  Lawrence's  Wheaton,  pp.  813,  Twiss,  §  226;  Vattel,  liv.  iii.  chap. 

814,   citing    remarks   of  Solicitor-  vii.  §110;  Hall.  §  232  ;  the  5««/«- 

General   Layard  in  the   House  of  sima    Trinidad,  7  Wheaton,   283; 

Cpmmons,  February  22, 1862.    See,  Creasy,  §§  552-558  ;  Manning,  pp. 

also,  Annual  Message  of  President  255-259;   HI  Phillimore,  pp.  387- 

Pierce,  1854,  Executive  Documents  390. 
of  the  United  States,  1 854-1 855  ;  H         MV  Calvo,  §§  2617,  2633-2635. 


404  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

(2.)  Fitting-out  of  Hostile  Expeditions  in  Neutral  Territory. 
It  has  been  seen  that  a  belligerent  has  a  right  to  expect  that 
the  armies  of  his  enemy  shall  be  composed  of  citizens  of  the 
state  with  which  he  is  at  war,  and  that  he  has  a  just  ground 
of  complaint  if  his  enemy  is  permitted  to  recruit  his  armies  in 
neutral  territory.  For  precisely  the  same  reason  he  has  a  right 
to  expect  that  all  expeditions  and  other  warlike  operations 
shall  originate  in  the  territory  of  his  enemy,  or  in  territory 
which,  for  the  time,  is  securely  occupied  by  that  enemy.  The 
rules  of  international  law  authorize  him  to  so  conduct  his 
military  and  naval  operations  as  to  meet  and  oppose  and,  to  a 
certain  extent,  to  anticipate  military  undertakings  on  the  part 
of  his  enemy;  but  he  has  no  such  right  as  against  a  neutral; 
nor,  from  the  principle  of  state  sovereignty  and  independence, 
has  he  authority  to  enter  upon  neutral  territory  with  a  view 
to  prevent  the  organization  or  departure  of  expeditions  which 
are  being  prepared  within  such  territory  with  intent  to  operate 
against  him  on  the  high  seas  or  elsewhere.  If,  therefore,  an 
expedition,  or  other  warlike  operation,  which  is  directed  against 
him  originates  in  the  territory  of  a  neutral,  such  undertaking 
being  an  operation  of  war,  he  is  at  liberty  to  regard  that  neu- 
tral as  an  enemy,  and  is  warranted  by  the  rules  of  interna- 
tional law  in  holding  him  responsible  for  a  violation  of  his 
neutral  obligation. 

W/iaf  Constitutes  a  Hostile  Expedition — the  Intent.  In  deter- 
mining the  duty  of  a  neutral  state  in  respect  to  permitting 
the  fitting-out  of  hostile  expeditions  within  its  territories,  the 
question  of  intent  must  be  considered.  If,  for  example,  a  ves- 
sel is  constructed  within  neutral  jurisdiction,  purely  as  a  com- 
mercial venture,  and  held  for  sale  within  neutral  territory,  or 
sent,  under  the  papers  and  flag  of  such  neutral  state,  to  the 
port  of  a  belligerent  for  sale  with  a  crew  sufficient  only  to 
navigate  the  ship  and  without  capacity  to  resist  search  or  capt- 
ure, there  is  no  violation  of  international  law.  If,  on  the 
other  hand,  the  vessel  is  intended  for  belligerent  use,  and  is 
constructed  in  neutral  territory,  but  with  a  view  to  its  becom- 
ing a  part  of  the  naval  force  of  a  belligerent  on  leaving  such 


NEUTRALITY 


405 


neutral  port,  then  it  becomes  a  hostile  expedition  which  it  is 
the  duty  of  the  neutral  state  to  prevent/  In  this  case  it  does 
not  matter  as  to  the  state  of  completion  in  which  the  expedi- 
tion may  be  when  it  leaves  the  waters  of  the  neutral  state :  it 
is  equally  unlawful  whether  it  be  fully  equipped  for  service,  or 
whether  it  goes  out  in  separate  parts  which  are  to  be  assem- 
bled on  the  high  seas  or  in  the  waters  of  a  neutral  state.  The 
offence  is  the  same  in  either  case.' 


'  "  It  is  firmly  settled  that,  if  capt- 
ures  are   made   by  vessels   which 
have  violated  our  neutrality  laws, 
the    property  may  be   restored    if 
brought   within    our    territory." — 
The^Gran  Para,  7  Wheaton,  471  ; 
the     Santa    Maria,    7    Wheaton, 
490;  the  Monte  Allegre,  7  Whea- 
ton,   520.    "  This  court  has  never 
decided  that  the  offence  (of  fitting- 
out,  etc.,  in  violation  of  the  neu- 
trality acts)  adheres   to  the    ves- 
sel, whatever   changes    may   have 
taken  place,  and  cannot  be  depos- 
ited at  the  termination  of  the  cruise 
in  preparing  for  which  it  was  com- 
mitted;    and,    as    the    Irresistible 
made  no  prize  on  her  passage  from 
Baltimore  to  the  river   La   Plata, 
it  is   contended   tliat    her  offence 
was  deposited  there,  and  that  the 
court  cannot   connect  her   subse- 
quent cruise  with  the  transactions 
of   Baltimore." — The   Gran  Para, 
7  Wheaton,    471    [487]-      "If  this 
were  to  be  admitted  in  such  a  case 
as  this,  the  laws  for  the  preserva- 
tion   of   our   neutrality  would    be 
completely  eluded,  so  far  as  this 
enforcement  depends  on  the  res- 
titution of  prizes  made  in  violation 
of  them.   Vessels  completely  fitted 
in  our  ports  for  military  operations 
need  only  sail  to  a  belligerent  port, 
and  there,  after  obtaining  a  com- 
mission, go  through  the  ceremony 
of   discharging    and    re -enlisting 
their  crews   to    become    perfectly 
legitimate   cruisers,  purified  from 


every  taint  contracted  at  the  place 
where  all  their  real  force  and  ca- 
pacity for  annoj'ance  was  acquired. 
This  would,  indeed,  be  a  fraudulent 
neutrality,  disgraceful  to  our  own 
government,  and  of  which  no  na- 
tion would  be  the  dupe.  It  is  im- 
possible for  a  moment  to  disguise 
the  facts,  that  the  arms  and  am- 
munition taken  on  board  the  Irre- 
sistible at  Baltimore  were  taken  for 
the  purpose  of  being  used  on  a 
cruise,  and  that  the  men  there  en- 
listed, though  engaged,  in  form,  as 
for  a  commercial  voyage,  were  not 
so  engaged  in  fact.  There  was  no 
commercial  voyage,  and  no  indi- 
vidual of  the  crew  could  believe 
that  there  was  one." — Ibid.  See, 
also,  II  Halleck,  pp.  196-199;  II 
Twiss,  §§  232-240;  IV  Calvo,  §§ 
2517-2522;  III  Dig.  Int.  Law,  §§ 
395a-402. 

*The  rule  above  stated,  which  is 
supported  by  American  authors 
and  by  some  Continental  writers, 
will  be  found  fully  set  forth  in  the 
case  of  the  Santissiina  Trinidad  (7 
Wheaton,  283)  and  in  the  follow- 
ing note  to  Dana's  ed  ition  of  Whea- 
ton :  "As  to  the  preparing  of  ves- 
sels within  our  jurisdiction  for 
subsequent  hostile  operations,  the 
test  we  have  applied  has  not  been 
the  extent  and  character  of  the 
preparations,  but  the  intent  with 
which  the  particular  acts  were  done. 
If  any  person  does  any  act,  or  at- 
tempts to  do  any  act,  towards  such 


4o6 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


Duty  of  Neutral  State,  How  Determined.  The  duty  and 
responsibility  of  a  state  in  this  regard  are  fixed  and  determined, 
not  by  municipal,  but  by  international  law,  which  requires  a 


preparation,  with   the  intent  that 
the   vessel   shall   be   employed   in 
hostile    operations,    he    is    guilty, 
without   reference  to  the  comple- 
tion of  the  preparations  or  the  ex- 
tent to  which  they  may  have  gone, 
and  although  his  attempt  may  have 
resulted    in    no    definite    progress 
towards  the  completion  of  his  prep- 
arations.    The  procuring  of  mate- 
rials to  be  used  knowingly  and  with 
the  intent,  etc.,  is  an  offence.     Ac- 
cordingly, it   is   not    necessary  to 
show  that   the   vessel  was  armed 
or  was  in  any  way  or  at  any  time 
before  or  after  the  act  charged  in 
a  condition  to  commit  acts  of  hos- 
tility. ...  It  will  be  seen  at  once, 
by  these  abstract  definitions,  that 
our  rules  do  not  interfere  with  bo7ia 
fide  commercial  dealings   in  con- 
traband of  war.    An  American  mer- 
chant may  build  and  fully  arm  a 
vessel  and  supply  her  with  stores 
and  offer  her  for  sale  in  our  own 
market.     If  he  does  any  acts  as  an 
agent  or  servant  of  a  belligerent, 
or  in  pursuance  of  an  arrangement 
or  understanding  with  a  belliger- 
ent, that  she  shall  be  employed  in 
hostilities  when  sold,  he  is  guilty. 
He  may,  without  violating  our  own 
law,  send  out  such  a  vessel  so  equip- 
ped under  the  flag  and  papers  of 
his    own    country,  with    no    more 
force  of  crew  than  is  suitable  for 
navigation,  with  no  right  to  resist 
search  or  seizure,  and  to  take  the 
chance  of  capture   as  contraband 
merchandise  of  blockade  and  of  a 
market  in  a  belligerent  port.     In 
such  case  the  extent  and  charac- 
ter of  the  equipments  are  as    im- 
material as   in  the  other  class  of 
cases.     The  intent  is  all.     The  act 
is  open  to    suspicion    and    abuse, 
and  the  line  may  often  be  scarcely 


traceable,  yet  the  principle  is  clear 
enough.  Is  the  intent  one  to  pre- 
pare an  article  of  contraband  mer- 
chandise to  be  sent  to  the  mar- 
ket of  a  belligerent,  subject  to  the 
chances  of  capture  and  a  market.^ 
Or,  on  the  other  hand,  is  it  to  fit 
out  a  vessel  which  shall  leave  our 
port  to  cruise,  immediately  or  ul- 
timately, against  the  commerce  of 
a  friendly  nation?  The  latter  we 
are  bound  to  prevent.  The  former 
the  belligerent  must  prevent.  In 
the  former  case  the  ship  is  mer- 
chandise, under  bona  fide  neutral 
flag  and  papers,  with  a  port  of  des- 
tination, subject  to  capture  as  con- 
traband merchandise  by  the  other 
belligerent,  to  the  risks  of  block- 
ade, and  with  no  right  to  resist 
search  and  seizure,  and  liable  to  be 
treated  as  a  pirate  by  any  nation 
if  she  does  any  act  of  hostility  to 
the  property  of  a  belligerent,  as 
much  as  if  she  did  it  to  that  of  a 
neutral.  Such  a  trade  in  contra- 
band a  belligerent  may  cut  off  by 
cruising  the  seas  and  blockading 
his  enemy's  ports.  But  to  protect 
himself  against  vessels  sailing  out 
of  a  neutral  port  to  commit  hostil- 
ities, it  would  be  necessary  for  him 
to  hover  off  the  ports  of  a  neutral; 
and  to  do  that  effectually  he  must 
maintain  a  kind  of  blockade  of  the 
neutral  coast,  which,  as  neutrals 
will  not  permit,  they  ought  not  to 
give  occasion  for." — Dana's  Whea- 
ton,  8th  edition,  note  215.  See,  also, 
the  Santissima  Trinidad,  7  Whea- 
ton,283.  "  Where  a  person  was  in- 
dicted under  the  third  section  of  the 
act  of  1 81 8  (3  Stat.  448;  Rev.  Stat. 
§  5283)  with  being  knowingly  con- 
cerned in  the  fitting-out  of  a  vessel 
with  intent  to  employ  her  in  the 
service   of  a  foreign   people,  viz., 


NEUTRALITY  407 

neutral  state  to  prevent  the  departure  of  such  hostile  expedi- 
tions. It  may  resort  to  such  measures  of  prevention,  in  respect 
to  its  subjects  or  other  persons  within  its  jurisdiction,  as  it  may- 
deem  prudent  or  expedient  to  accomplish  that  purpose  ;  it  may 
enact  stringent  laws,  or  it  may  issue  proclamations  or  promul- 
gate regulations ;  with  all  this  international  law  has  nothing 
to  do.  Such  statutes  neither  add  to  nor  diminish  the  respon- 
sibility of  the  neutral  state,  which  must  see  to  it  that  such 
expeditions  do  not  emerge  from  its  territorial  waters  with  a 
view  to  commit  acts  of  hostility  against  a  state  with  which  the 
neutral  is  at  peace.  Their  existence  presumes  an  intention  on 
the  part  of  a  state  to  fulfil  its  neutral  duties.  Their  absence 
may  imply  the  contrary,  or  it  may  imply  that  some  depart- 
ment of  the  government  has  sufficient  power  in  the  premises 
to  make  such  provisions  unnecessary.  If  they  exist,  and  are 
inadequate  to  the  purpose,  their  inadequacy  cannot  be  pleaded 
in  extenuation  of  a  violation  of  neutral  duty  ;  if  they  do  not 
exist,  their  absence  cannot  be  alleged  to  excuse  a  failure  to 
observe  a  neutral  obligation  ;  nor,  finally,  can  their  enforce- 
ment, by  obscuring  the  real  issue  involved,  or  by  distracting 
the  attention  of  a  neutral  state  from  its  real  responsibility,  at 
all  diminish  that  responsibility  or  change  its  character.' 

Augmentation  of  Force.     What  has  been  said  in  respect 

the  United  Provinces  of  Buenos  spect  to  the  employment  of  the 
Ayres,  against  the  subjects  of  the  vessel  must  be  formed  before  she 
Emperor  of  Brazil,  with  whom  the  leaves  the  United  States."  —  Ibid. 
United  States  are  at  peace  :  Held,  "  The  law  does  not  prohibit  armed 
that  to  bring  the  defendant  within  vessels  belonging  to  citizens  of  the 
the  act,  either  fitting-out  or  arming  United  States  from  sailing,  it  only 
will  constitute  an  offence."— United  requires  the  owners  to  give  secu- 
States  I's.  Quincy,  6  Peters,  445.  rity.  Collectors  are  not  authorized 
"  It  is  not  necessary  that  the  vessel,  to  detain  vessels  built  for  warlike 
when  she  left  a  port  of  the  United  purposes  and  about  to  depart,  un- 
States  for  a  foreign  port,  and  dur-  less  circumstances  render  it  prob- 
ing her  passage,  and  when  she  ar-  able  that  they  are  to  be  employed 
rived  at  the  foreign  port,  should  be  in  violation  of  the  act." — Ibid, 
armed  and  in  condition  for  hostili-  'II  Halleck,  pp.  198,  199;  IV 
tiestoconstitutean  offence."— Ibid.  Calvo,  §§  2491,  2593,  2616-2636;  II 
"The preparations tocommithostil-  Twiss,  §217;  Hall,  §  19;  III  Phil- 
itiesmustbe  made  within  theUnited  limore,  §  139;  Lawrence,  §§  243- 
States,  and  the  intention  with  re-  249. 


408  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

to  a  hostile  expedition  originating  in  a  neutral  port  applies 
with  equal  force  to  the  augmentation  of  force  by  a  ship  or  fleet 
in  a  neutral  port,  the  principle  being  the  same  in  either  case. 
To  "  augment "  the  force  of  a  vessel  is  to  add  to  or  increase 
her  military  power  or  efficiency,  or  make  it  possible  for  her  to 
act  more  efficiently  against  the  enemy  by  the  addition  of  war- 
like stores  or  material.  To  increase  the  armament  of  such  a 
vessel,  to  add  to  its  stock  of  ammunition,  or  to  increase  its  crew 
would  be  a  violation  of  the  law  which  the  neutral  is  bound  to 
prevent.* 

The  Terceira  Affair.  In  1828  an  insurrection  broke  out 
in  Portugal  headed  by  Dom  Miguel,  the  uncle  of  the  reigning 
Queen.  The  Portuguese  Government  called  upon  the  British 
Government  for  aid  under  the  terms  of  an  existing  treaty, 
which  guaranteed  the  maintenance  of  the  royal  family  upon 
the  throne.  This  assistance  was  refused  by  Great  Britain  on 
the  ground  that  the  guarantee  of  the  treaty  contemplated 
assistance  against  external  interference  and  did  not  apply  to 
a  case  of  domestic  insurrection.  A  considerable  number  of 
Portuguese  subjects,  who  had  assembled  in  England,  formed  a 
military  organization  with  the  design  of  leaving  the  Channel 
ports  with  a  view  of  entering  the  service  of  the  Queen.  In 
pursuance  of  this  design  four  vessels,  not  armed  or  equipped 
as  vessels  of  war,  sailed  from  Plymouth,  ostensibly  for  Brazil. 
The  English  ministry,  suspecting  their  design  to  be  to  effect  a 
landing  at  Terceira,  ordered  a  squadron  to  the  Azores  with  a 
view  to  prevent  their  landing  on  Portuguese  territory.  The 
vessels  were  intercepted  off  Porto  Praya,  their  passengers  were 
not  permitted  to  land,  and  they  were  forcibly  escorted  back  to 

''"Converting  a  merchantman  breach  of  neutrality." — Moodie  z'j'. 
into  a  cruiser  by  increasing  the  the  Betty  Cathcart,  Bee,  43.  "Yet 
number  of  her  guns  and  adding  the  repair  of  bottoms,  copper,  etc., 
other  equipments  is  equivalent  to  does  not  constitute  any  increase  or 
an  original  outfit,  within  the  mean-  augmentation  of  force  within  the 
ing  of  the  act  of  Congress." — Unit-  meaning  of  the  act ;  and  the  steam- 
ed States  vs.  Guinet,  2  Dallas,  321.  ers  themselves  are  not  subject  to 
"Themountingof  newgunsand  the  seizure  by  any  judicial  process  un- 
opening  of  new  ports  is  an  augmen-  der  it."  —  IV  Opin.  of  Att. -Gen, 
tation    of    force    amounting    to   a  p.  336. 


NEUTRALITY 


409 


the  vicinity  of  the  British  Channel,  where  they  were  released 
and  took  refuge  in  a  port  of  France.  In  this  case,  although  it 
violated  the  sovereignty  of  Portugal  by  the  use  of  force  in 
Portuguese  waters,  Great  Britain  fully  performed  its  duty  as  a 
neutral  under  the  rules  of  international  law.' 

Case  of  the  "Horsa."  The  Horsa  was  a  Danish  steamer, 
sailing  under  the  Danish  flag  and  papers,  and  her  captain  and 
officers,  who  were  indicted  for  a  violation  of  the  neutrality 
laws  of  the  United  States,  were  Danish  subjects.  The  Horsa 
was  engaged  in  the  fruit  trade,  and,  on  November  9,  1895, 
cleared  from  Philadelphia  for  Port  Antonio,  Jamaica,  with  or- 
ders to  proceed  to  a  point  on  the  high  seas  off  the  port  of 
Barnegat,  New  Jersey,  and  there  await  orders.  At  the  point 
thus  agreed  upon,  she  was  joined,  the  same  night,  by  a  steam- 
lighter,  having  on  board  several  cases  of  merchandise  and  be- 
tween thirty  and  forty  passengers ;  these  were  transferred  to 
the  Horsa,  which  proceeded  on  her  way.  During  the  voyage 
the  packages  were  opened  and  the  arms  and  ammunition  which 
they  contained  were  distributed  among  the  passengers,  who 
were  drilled  and  instructed  in  their  use;  at  the  same  time  the 
remaining  contents  of  the  packages,  which  included  a  Maxim 
gun,  were  prepared  for  landing.  About  six  miles  off  the  coast 
of  Cuba,  upon  which  island  there  was,  at  the  time,  an  insurrec- 
tion in  progress  against  Spain,  the  passengers  were  disembark- 
ed, taking  with  them  the  arms  and  munitions  of  war  which  they 
had  brought  on  board  the  Horsa.  The  officers  of  the  ship  were 
indicted  for  a  violation  of  the  neutrality  laws  of  the  United 

1  Hall,  §  222 ;    Dana's  Wheaton,  organization,  and  made  no  use  of 

§439.  note  215,  p.  566;    Risley,  pp.  the  arms  and  ammunition  which 

194,  195;    III  Phillimore,  pp.  287-  were  contained  in  the  cargoes  of 

296.     "  In  1870,  during  the  Franco-  the  vessels  which  transported  them. 

Prussian  War,  1200  Frenchmen  left  The    United    States    government, 

New  York  for  France   upon    two  which  had  permitted  their  depart- 

steamers  carrying  the  French  flag  ure,  justified  it  on  the  ground  that 

and  which  carried  as  cargo  a  large  they  did   not  constitute  a  hostile 

quantity  of  arms  and  ammunition,  expedition,  and  that  for  that  reason 

The  passengers  were  French  sub-  their  departure  from  its  territorial 

jects  returning  to  their  allegiance  jurisdiction   did   not   constitute  a 

at  the  outbreak  of  war;  they  were  violation  of  its  neutral  obligation." 

not  officered,  they  were  without  — Risley,  pp.  195-197. 


4IO  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

States,  and  were  convicted  in  the  court  of  first  instance.  The 
case  was  carried  to  the  Supreme  Court  by  writ  of  error,  where 
it  was  decided  that  the  acts  above  set  forth  constituted  a  hos- 
tile expedition,  and  therefore  a  violation  of  the  neutral  duty  of 
the  United  States.  The  judgment  of  the  court  below  was  af- 
firmed as  to  the  captain,  but  reversed  as  to  the  officers  of  the 
ship,  who  were  granted  a  new  trial.' 

Case  of  the  "  Itata."  In  January,  1891,  the  steamer  I/ata 
was  captured  in  the  harbor  of  Valparaiso,  Chili,  by  a  party  of  in- 
surgents against  the  existing  government  of  the  republic.  She 
was  of^cered  and  manned  by  the  insurgents  and  used  by  them, 
from  time  to  time,  for  transport  purposes,  for  the  conveyance 
of  provisions  and  munitions  of  war,  and  as  a  hospital  ship.  In 
April,  1891,  one  Trumbull,  representing  the  insurgent  party, 
came  to  the  United  States  and  purchased,  in  New  York,  a 
large  quantity  of  arms  and  ammunition,  with  the  intention  of 
sending  them  to  Chili  for  the  use  of  the  insurrectionary  forces. 
The  Ifata  was  ordered  to  California  for  that  purpose,  and  was 
escorted  as  far  as  Cape  San  Lucas  by  the  Esmeralda,  an  in- 
surgent cruiser.  During  her  voyage  to  California  the  Itata 
had  on  board  four  small  brass  cannon,  with  ammunition  there- 
for, and  took  on  board,  at  a  Chilian  port,  twelve  soldiers,  with 
their  arms  and  uniforms,  who  were  employed  as  stokers. 

At  Cape  San  Lucas  the  cannon  and  ammunition,  together 
with  the  arms  and  uniforms  of  the  soldiers,  were  packed  in  the 
hold  of  the  vessel,  leaving  on  deck  one  small  cannon  which  had 
been  used  for  saluting  purposes.  The  arms  and  ammunition 
were  loaded  on  a  schooner  at  San  Francisco,  and  transported 
to  the  island  of  Santa  Catalina,  where  she  expected  to  meet 
the  Itata  and  transfer  her  cargo;  but  this  was  prevented  by 
the  seizure  of  the  Itata  in  the  port  of  San  Diego,  whither  she 
had  gone  for  coal  and  stores.  The  arms  were  subsequently 
transferred  to  the  Itata  near  San  Clemente  Island,  off  the 
southern  coast  of  California,  and  were  immediately  transported 


'  Wiborg  vs.  U.  S.  163  U.  S.  632;  U.  S.  vs.  Ybanez,  53  Fed.  Rep.  536; 
U.  S.  vs,  Pena,  69  Fed.  Rep.  983. 


NEUTRALITY  4tl 

to  Chili.  On  September  4,  1891,  the  belligerency  of  the  insur- 
rectionary party  in  Chili  was  recognized  by  the  United  States. 
The  case  was  tried  in  the  proper  district  court  of  the  United 
States,  where  it  was  decided  that  the  facts,  as  above  set  forth, 
did  not  constitute  the  fitting-out  of  a  hostile  expedition  against 
a  government  with  which  the  United  States  was  at  peace  ,  and 
that  the  mere  purchase  and  carriage  of  arms  and  warlike  stores 
to  a  party  of  insurgents  in  a  foreign  country,  such  munitions 
not  constituting  a  part  of  the  fittings  or  furnishings  of  the  ves- 
sel, did  not  constitute  a  violation  of  the  neutral  duty  of  the 
United  States  or  violate  her  neutrality  laws.' 

Case  of  the  "  Alabama."  The  most  conspicuous  illustration, 
in  recent  times,  of  the  failure  of  a  state  to  observe  its  neutral 
obligations  is  that  afforded  by  the  case  of  the  Alabama. 
Among  the  most  pressing  needs  of  the  Confederates  was  that 
of  sea-going  ships  capable  of  being  used  for  war.  Such  ves- 
sels as  they  possessed  were,  for  the  most  part,  very  small. 
There  was  probably  not  one  of  these  which  could  have  vent- 
ured to  engage  a  Federal  cruiser  of  any  class  without  cer- 
tain destruction.  In  coast  warfare  they  were  able  to  achieve 
one  or  two  brilliant,  though  unprofitable,  successes.  But  the 
construction  of  a  large  sea-going  steamer  seems  to  have  been 
beyond  their  power  ;  their  only  ships  were  such  as  had  fallen 
into  their  hands,  and  they  either  had  not  the  materials  and 
machinery  for  turning  out  marine  steam-engines  or  were  un- 
able to  use  them."  * 

Construction  of  Cruisers  in  British  Jurisdiction.  To  enable 
the  Confederates  to  overcome  this  disparity  of  force  at  sea  a 
scheme  was  projected  of  procuring  by  purchase,  in  England,  a 
number  of  war-steamers  for  the  Confederate  navy.  This  un- 
dertaking was  quite  different  from  those  that  had  preceded  it, 

'The  Itata,  49  Fed.  Rep.  646;  =  Bernard.    The    Neutrality    of 

Ibid.  56  Fed.  Rep.   505;  U.  S.  7'^.  Great  Britain,  etc.,  p.  336;   for  a 

Weed,  5  Wallace,  62 ;  the  Watch-  discussion   of  the   parallelism  be- 

ful,    6   Wallace,    91  ;     U.    S.    vs.  tween  this   case   and   that  of  the 

Trumbull,  48  Fed.  Rep.  99;   For.  Duke   of  Saldanha,  see    For,  Rel. 

Rel.U.  S.  1891, pp.  122, 132,  316-322;  U.S.  1877,  p.  451. 
the  Three  Friends,  166  U.  S.  i. 


412     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

inasmuch  as  it  was  proposed  that  these  vessels,  so  soon  as  they 
had  been  completed  and  equipped  for  war,  whether  in  Eng- 
land or  elsewhere,  should,  without  being  sent  to  any  port  with- 
in the  jurisdiction  of  the  Confederacy,  at  once  engage  in  hos- 
tile operations  against  the  United  States.  With  this  end  in 
view,  agents  were  despatched  to  England  with  instructions  to 
arrange  for  the  purchase  or  construction  of  a  number  of  swift 
and  powerful  steamers  for  this  purpose.  These  agents  were 
to  arrange  all  the  details  of  armament  and  equipment,  and 
were  to  transfer  them,  when  completed  and  ready  for  service, 
to  certain  designated  of^cers  of  the  Confederate  navy. 

These  instructions  were  carried  out  in  all  their  essential  de- 
tails. The  ships,three  in  number,  which  were  afterwards  known 
as  the  Florida,  Alabama,  and  Shenandoah,  were  purchased  or 
constructed  in  England.  Their  armament  and  equipment 
were  obtained,  and  a  portion  of  their  crews  enlisted,  in  British 
territory,  without  encountering  any  obstacles  which  do  not 
seem  to  have  been  overcome  without  special  difificulty.  In 
every  case  the  ships  left  England  without  guns  or  ammunition 
on  board,  and  but  partly  manned  ;  and  in  every  case  the  ar- 
ticles needed  to  prepare  the  vessel  for  active  service,  and  a 
part  or  the  whole  of  the  crew,  were  shipped  from  England  by 
another  vessel,  the  equipment  being  completed  at  a  point 
previously  agreed  upon,  usually  in  neutral  waters,  and  never 
within  British  jurisdiction. 

Later  History  of  the  Confederate  Cruisers.  Of  the  three 
cruisers  whose  origin  has  been  alluded  to,  the  career  may  be 
briefly  told.  The  Florida,  on  August  ii,  1862,  completed  her 
armament  in  neutral  West  Indian  waters,  and  entered  upon 
her  duty  of  destroying  merchant  vessels.  Her  career  was  ter- 
minated in  October,  1864,  by  her  illegal  capture  in  the  port  of 
Bahia,  Brazil. 

The  Alabajua,  in  spite  of  the  urgent  remonstrances  of  the 
American  minister,  effected  her  departure  from  English  wa- 
ters on  the  29th  of  July,  1862.  Her  armament  and  crew  were 
placed  on  board  at  Angra  Bay,  in  the  Azores  Islands,  near  the 
end  of  the  following  month.     After  a  most  eventful  career, 


NEUTRALITY 


413 


during  which  she  succeeded  in  capturing  or  destroying  fifty- 
eight  merchant  vessels,  she  was  defeated  and  sunk  in  an  en- 
gagement with  the  United  States  steamer  Kearsarge,  off  the 
port  of  Havre,  France,  on  June  19,  1864. 

The  Shefiandoah,  a  steamer  formerly  engaged  in  the  China 
trade,  attracted  the  attention  of  the  Confederate  agents  in 
London  by  her  speed  and  superior  sailing  qualities,  as  well  as 
by  her  adaptability  to  the  purposes  which  they  had  in  view. 
She  was,  therefore,  purchased,  and  on  October  8,  1864,  cleared 
from  the  Thames,  ostensibly  for  Bombay.  Her  real  destina- 
tion, however,  was  the  island  of  Madeira,  whither  a  tender 
had  preceded  her  containing  her  armament  and  crew.  The 
transfer  was  effected  in  neutral  jurisdiction,  as  in  the  preced- 
ing cases,  about  October  21st  of  the  same  year.  The  evidence 
submitted  in  the  case  of  this  vessel  satisfied  the  Geneva  Board 
of  Arbitration  that  no  responsibility  attached  to  the  British 
Government  for  her  conduct  up  to  the  date  of  her  arrival  at 
Melbourne,  Australia.  The  circumstances  attending  her  con- 
duct there  should  have  caused  her  detention,  but  did  not,  and 
for  her  acts,  after  the  date  of  her  departure  from  Melbourne, 
the  British  Government  was  held  responsible.  The  career  of 
this  vessel  is  remarkable  from  the  fact  that  she  continued  to 
make  captures,  in  the  North  Pacific,  after  the  termination  of 
hostilities  in  the  Civil  War.  Upon  being  notified  of  the  peace 
in  July,  1865,  she  was  conveyed  by  her  captain  to  Liverpool, 
and  was  there  surrendered  to  the  British  Government,' 

Result  of  their  Operations.  The  result  of  the  operations  of 
these  vessels  and  their  tenders  was,  in  effect,  to  destroy  the 
merchant  marine  of  the  United  States.  Such  of  its  ships  as 
escaped  capture  or  destruction  were  transferred  to  foreign 
flags,  to  secure  an  immunity  from  capture  by  acquiring  the 
neutral  character.  The  question  continued  an  open  one  be- 
tween the  governments  for  a  number  of  years,  subjecting  their 
relations  to  a  constant  strain,  and  at  times  taking  such  a  turn 

'  For  Captain  Waddell's  letter  surrendering  this  vessel,  see  Ber- 
to  the  Secretary  of  Foreign  Affairs,     nard,  pp.  434-439. 


414  THE  ELEMENTS  OF   INTERNATIONAL  LAW 

as  to  render  war  between  them  a  not  unlikely  occurrence. 
Several  attempts  at  settlement  were  made,  but  without  suc- 
cess, owing  to  the  excited  state  of  feeling  at  the  time.  The 
question  was  finally  put  in  the  way  of  adjustment  by  the  nego- 
tiation of  the  Treaty  of  Washington,  in  1871. 

Mariner  in  whicJi  the  Neutral  Duty  of  Great  Britain  was 
Performed.  It  has  been  seen  that,  during  the  continuance  of 
the  Civil  War,  three  war  steamers  were  obtained  by  the  Con- 
federate States  in  England  by  purchase  and  construction.  Over 
the  acts  of  those  persons  within  its  jurisdiction  who  had  to  do 
with  such  purchase  and  construction  the  British  Government 
had  undisputed  control.  Its  duty  and  responsibility  in  the 
premises  should  have  been  known  to  the  individual  members 
of  the  government ;  and  the  ease  with  which  the  American 
minister  was  able  to  obtain  detailed  information  as  to  the 
purpose  and  ultimate  destination  of  these  vessels  shows  that 
no  insuperable  dif^culties  lay  in  the  way  of  its  obtaining  sim- 
ilar knowledge,  upon  which  to  act  in  the  performance  of  its 
neutral  duty. 

In  the  performance  of  its  duty  as  a  neutral,  however,  the 
British  Government  displayed  not  only  a  singular  and  un- 
usual lack  of  energy  and  vigilance,  but  a  more  remarkable 
failure  to  discern  the  true  point  at  issue.  In  a  manner  en- 
tirely in  accordance  with  English  tradition,  it  seems  to  have 
been  taken  for  granted  that  a  more  or  less  vigorous  enforce- 
ment of  the  existing  neutrality  laws  would  constitute  a  suf- 
ficient performance  of  its  neutral  duty,  and  a  suflficient  fulfil- 
ment of  its  neutral  obligation.  The  action  of  the  government, 
therefore,  was  not  only  confined  to  the  enforcement  of  its  neu- 
trality law,  but  a  peculiar  construction  was  placed  upon  that 
law,  by  which  it  was  deemed  no  violation  of  its  provisions  to 
construct  a  ship,  even  for  an  admitted  warlike  purpose,  if  no 
portion  of  its  equipment  and  armament  was  contributed  by 
its  builders,  or  placed  on  board  within  British  territorial  juris- 
diction. 

Neutral  Responsibility  of  Great  Britain.  From  what  mistaken 
view  of  international  duty  such  an  idea  was  deduced  it  is  not 


NEUTRALITY  415 

necessary  to  discuss  here.  Acts  like  those  of  which  the  United 
States  complained  were  opposed  to  the  usages  of  nations,  be- 
cause they  constituted  hostile  attempts  against  a  friendly 
power,  and  originated  within  neutral  jurisdiction.  A  belliger- 
ent has  no  right,  or  color  of  right,  to  interfere  in  any  manner 
with  the  internal  administration  of  a  sovereign  state.  He  must 
judge  of  the  attitude  and  intentions  of  that  state  by  its  acts, 
or  by  the  acts  of  individuals  which  have  originated  within  its 
territory.  If  an  act  of  hostility  originate  in  a  neutral  state,  it 
matters  not  by  whom  it  is  committed,  the  neutral  is  entirely 
responsible  for  its  effects  and  results,  whatever  they  may  be ; 
and  no  other  course  is  open  to  a  belligerent  than  to  hold  such 
neutral  to  a  strict  accountability  for  events  over  which  he  has, 
and  may  exercise,  a  jurisdiction  in  every  way  adequate  to  his 
responsibility. 

The  Geneva  Arbitration 

History.  The  most  striking  and  successful  example  of  the 
settlement  of  an  international  difference  of  the  gravest  char- 
acter, by  a  resort  to  the  principle  of  arbitration,  is  furnished 
by  the  adjustment  of  the  dispute  between  the  United  States 
and  England  growing  out  of  the  Alabama  Claims.  It  was  im- 
possible that  a  difference  of  such  serious  importance  could 
long  exist  without  endangering  the  friendly  relations  of  the 
two  powers,  and,  at  different  times  between  the  years  1863 
and  1869,  efforts  were  made  with  a  view  to  its  adjustment. 
None  of  them,  however,  were  successful.  The  first  attempt 
was  made,  in  1863,  by  Mr.  Adams,  the  United  States  minister 
to  England.  He  submitted  a  proposition  which  was  held 
under  advisement  for  a  time  by  the  British  cabinet,  but  was 
finally  declined  in  1865,  Another  effort  was  made  in  1866, 
and  negotiations  were  continued  until,  in  January,  1868,  they 
were  broken  off,  apparently  without  hope  of  renewal.  In  1869 
they  were  again  renewed  by  Mr.  Reverdy  Johnson,  who  had 
succeeded  Mr.  Adams  as  the  American  representative  in  Eng- 
land. An  agreement  was  entered  into,  between  Mr.  Johnson 
and  the  Earl  of  Clarendon,  by  which  the  claims  were  to  be 


41 6  THE    ELEMENTS    OF   INTERNATIONAL   LAW 

referred  to  a  commission  selected  by  the  interested  powers. 
This  agreement  was  not  ratified  by  the  United  States  Senate, 
a  co-ordinate  branch  of  the  treaty-making  power,  and  thus,  for 
the  third  time,  the  efforts  at  adjustment  were  abandoned. 

The  Treaty  of  Washington.  In  1870  a  dispute  arose  between 
the  United  States  and  Canada,  as  to  the  right  of  American 
citizens  to  participate  in  the  fisheries  in  certain  British  terri- 
torial waters  of  North  America.  As  the  agitation  of  the  ques- 
tion seemed  likely  to  introduce  a  new  element  of  difficulty 
into  the  complications  already  existing  between  the  two  gov- 
ernments, a  proposal  was  submitted,  through  the  British  min- 
ister, to  the  government  in  Washington  for  the  appointment 
of  3i  Joint  Commission.  The  commission  was  to  be  composed, 
in  equal  numbers,  of  members  selected  by  each  government, 
and  was-lo  be  charged  with  the  adjustment,  not  only  of  the 
fishing  dispute,  but  of  all  questions  which  might  affect  the 
relations  of  the  United  States  with  the  British  possessions  in 
North  America.  To  this  proposition  a  reply  was  made,  in  be- 
half of  the  United  States,  that  the  project  of  the  commission 
would  not  be  favorably  considered  unless  its  powers  were  ex- 
tended to  include  the  settlement  of  the  differences  which  had 
arisen,  during  the  Civil  War,  out  of  the  acts  committed  by 
Confederate  cruisers,  which  had  given  rise  to  the  demands 
known  as  the  Alabama  Claims." 

The  proposition  of  the  United  States  was  accepted,  and  an 
agreement  was  entered  into  providing  for  the  organization  of 
a  commission  of  ten  members,  selected  in  equal  numbers  by 
the  governments  of  England  and  the  United  States.  The 
commission  was  to  sit  in  the  city  of  Washington,  and  was  to 
address  itself  to  the  task  of  providing  a  means  of  adjusting  all 
causes  of  difference  then  existing  between  the  two  countries. 

The  commission  thus  provided  for  met  in  Washington  on 
March  4,  1871.  Its  labors  terminated  on  May  8th,  with  the 
completion  and  signature  of  the  Treaty  of  Washington.  That 
instrument  provided  for  the  reference  of  the  Alabama  Claims 

*  Revue  de  Droit  Internationa?  vol.  iii.  1871,  p.  113. 


NEUTRALITY  417 

to  a  tribunal  of  arbitration  to  be  composed  of  five  members. 
Of  these  one  was  to  be  selected  by  each  of  the  contracting 
parties,  and  one  each  by  the  King  of  Italy,  the  President  of 
the  Swiss  Confederation,  and  the  Emperor  of  Brazil.  The 
tribunal  was  to  meet  in  Geneva,  on  the  earliest  convenient  day 
after  the  nomination  of  its  members.  A  case  was  to  be  sub- 
mitted, by  each  of  the  contracting  parties ;  and  within  four 
months  thereafter  either  party  might,  in  its  discretion,  submit 
a  counter  case  in  reply  to  the  evidence  and  correspondence 
adduced  by  the  other  in  support  of  its  claim. 

The  Three  Rules  for  the  Guidance  of  the  Tribunal.  The 
tribunal,  in  deciding  the  case,  was  to  be  guided  by  three  rules 
which  were  incorporated  in  the  treaty  and  mutually  agreed  to 
by  the  litigant  powers.  The  agreement  on  the  part  of  Great 
Britain  was  qualified  by  the  declaration  that  "  her  Majesty's 
Government  cannot  assent  to  the  foregoing  rules  as  a  state- 
ment of  principles  of  international  law  which  were  in  force  at 
the  time  when  the  claims  mentioned  arose,  but  that  her  Maj- 
esty's Government,  in  order  to  evince  its  desire  of  strengthen- 
ing the  friendly  relations  between  the  two  countries,  and  of 
making  satisfactory  provision  for  the  future,  agrees  that,  in 
deciding  the  questions  between  the  two  countries  arising  out 
of  these  claims,  the  arbitrators  should  assume  that  her  Maj- 
esty's Government  had  undertaken  to  act  upon  the  principles 
set  forth  in  the  rules."  ' 

The  three  rules  are,  "A  neutral  government  is  bound — 

{a.)  "To  use  due  diligence  to  prevent  the  fitting-out,  arm- 
ing, equipping,  within  its  jurisdiction,  of  any  vessel  which  it 
has  reasonable  ground  to  believe  is  intended  to  cruise  or  carry 
on  war  against  a  power  with  which  it  is  at  peace ;  and  also  to 
use  like  diligence  to  prevent  the  departure  from  its  jurisdiction 
of  any  vessel  intended  to  cruise  or  carry  on  war  as  above,  such 
vessel  having  been  specially  adapted,  in  whole  or  in  part,  with- 
in such  jurisdiction,  to  warlike  use." 

{b.)  "  Not  to  permit  or  suffer  either  belligerent  to  make  use 

>  Ireaties  and  Conventions  of  the  United  States,  1776-1887,  p.  481. 
91 


41 8  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

of  its  ports  or  waters  as  a  base  of  naval  operations  against  the 
other,  or  for  the  purpose  of  the  renewal  or  augmentation  of 
military  supplies  or  arms,  or  the  recruitment  of  men." 

(c.)  "  To  exercise  due  diligence  in  its  own  ports  and  waters, 
and,  as  to  all  persons  within  its  jurisdiction,  to  prevent  any 
violations  of  the  foregoing  obligations  and  duties." 

Procedure  and  Finding.  The  decision  of  the  tribunal  was  to 
be  rendered,  if  possible,  within  three  months  after  the  argu- 
ments on  both  sides  had  been  closed.  It  was  to  be  in  writing, 
prepared  in  duplicate,  and  signed  by  the  arbitrators  who  as- 
sented to  it.  The  question  referred  for  decision,  as  to  each 
vessel  separately,  was  "  whether  Great  Britain  has,  by  any  act 
of  omission,  failed  to  fulfil  any  of  the  duties  set  forth  in  the 
foregoing  three  rules,  or  recognized  by  the  principles  of  inter- 
national law  not  inconsistent  with  such  rules."* 

"In  case  the  tribunal  finds  that  Great  Britain  has  failed  to 
fulfil  any  duty,  or  duties,  as  aforesaid,  it  may,  if  it  think  proper, 
proceed  to  award  a  sum  in  gross,  to  be  paid  by  Great  Britain 
to  the  United  States,  for  all  the  claims  referred  to  it;  and  in 
such  case  the  gross  sum  so  awarded  shall  be  paid  in  coin  by 
the  government  of  Great  Britain  to  the  government  of  the 
United  States,  at  Washington,  within  twelve  months  after  the 
date  of  the  award.'' 

"  In  case  the  tribunal  find  that  Great  Britain  has  failed  to 
fulfil  any  duty,  or  duties,  as  aforesaid,  and  does  not  award  a 
sum  in  gross,  the  high  contracting  parties  agree  that  a  board 
of  assessors  shall  be  appointed  to  ascertain  and  determine 
what  claims  are  valid,  and  what  amount  or  amounts  shall  be 
paid  by  Great  Britain  to  the  United  States  on  account  of  the 
liability  arising  from  such  failures,  as  to  each  vessel,  according 
to  the  extent  of  such  liability  as  determined  by  the  arbitrators."  ^ 

Meeting  of  the  Tribunal  of  Arbitration.  The  tribunal  met 
at  Geneva  on  December  15,  1871.  The  full  powers  of  the 
arbitrators  were  exchanged,  and  the  board  was  organized  by 


'  Treaties  and  Conventions  of  the        '  Ibid.  p.  482. 
United  States,  1776-1887,  p.  481.  '  Ibid. 


NEUTRALITY  419 

the  selection  of  Count  Sclopis,  the  Italian  representative,  as 
president.  The  cases  were  submitted  by  the  agents  of  the 
respective  governments,  and  the  tribunal  directed  that  the 
counter  cases,  additional  documents,  correspondence,  and  evi- 
dence should  be  delivered  to  the  secretary  on  or  before  April 
15,  1872,  After  making  some  arrangements  as  to  procedure, 
the  tribunal,  on  the  following  day,  adjourned  to  meet  on  June 
15,  1872. 

Indirect  Claims.  In  the  case  submitted  by  the  United  States 
certain  claims  appeared  for  damages  due  under  the  heads  of — 

1st.  "  The  losses  in  the  transfer  of  the  American  commercial 
marine  to  the  British  flag," 

2d.  "  The  enhanced  rates  of  insurance." 

3d.  "  The  prolongation  of  the  war,  and  the  addition  of  a 
large  sum  to  the  cost  of  the  war  and  the  suppression  of  the 
rebellion." 

The  consideration  of  these  indirect  claims  by  the  tribunal 
was  objected  to  by  the  agent  of  the  British  Government ;  and 
the  tribunal  decided  that,  according  to  the  rules  of  interna- 
tional law  applicable  to  such  cases,  they  did  not  constitute  a 
good  foundation  for  an  award,  and  should  be  wholly  excluded 
from  the  consideration  of  the  tribunal  in  making  its  award. 
This  ruling  was  accepted  by  both  of  the  governments  inter- 
ested.' 

Rules  of  Interpretation.  Before  the  members  of  the  tribunal 
were  able  to  apply  the  rules  furnished  them  in  the  treaty  to 
the  decision  of  the  case  they  were  obliged  to  place  an  inter- 
pretation upon  some  of  the  terms  there  used,  and  to  define 
the  rule  of  international  law  upon  certain  points  which  were 
involved  in  the  judicial  determination  of  questions  not  covered 
by  the  rules  themselves.     It  was  therefore  decided — 

1^1.)  That  due  diligence  "ought  to  be  exercised  by  neutral 
governments  in  exact  proportion  to  the  risks  to  which  either 
of  the  belligerents  may  be  exposed,  from  a  failure  to  fulfil  the 
obligations  of  neutrality  on  their  part." 

'  For.  Rel.  U.  S.  1872, 1873,  "  Geneva  Arbitration,"  vol.  iv.  p.  20. 


420      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

(2.)  "  The  effects  of  a  violation  of  neutrality  committed  by 
means  of  the  construction,  equipment,  and  armament  of  a 
vessel  are  not  done  away  with  by  any  commission  which  the 
government  of  the  belligerent  power  benefited  by  the  violation 
of  neutrality  may  afterwards  have  granted  to  that  vessel ;  and 
the  ultimate  step  by  which  the  offence  is  completed  cannot  be 
admissible  as  a  ground  for  the  absolution  of  the  offender,  nor 
can  the  consummation  of  his  fraud  become  the  means  of  estab- 
lishing his  innocence." 

'3/)  "  The  principle  of  exterritoriality  has  been  admitted 
into  the  law  of  nations,  not  as  an  absolute  right,  but  solely  as 
a  proceeding  founded  on  the  principle  of  courtesy  and  mutual 
deference  between  different  nations,  and  therefore  can  never 
be  appealed  to  for  the  protection  of  acts  done  in  violation  of 
neutrality."  ' 

Decision.  A  decision  was  reached  by  the  tribunal  at  the 
session  of  September  9,  1872.  It  was  concurred  in  and  signed 
by  four  of  the  members,  the  English  representative  offering  a 
dissenting  opinion.  On  September  14,  after  directing  that  a 
copy  of  the  decision  should  be  delivered  to  each  of  the  agents 
of  the  two  governments,  the  tribunal  was  dissolved. 

Award.  In  the  cases  of  the  Alabama,  of  the  Florida,  and 
of  the  Shenandoah  after  her  departure  from  Melbourne  on 
February  18,  1865,  the  tribunal  was  of  opinion  that  Great 
Britain  had  failed,  by  omission,  to  perform  the  duties  pre- 
scribed in  two  or  more  of  the  rules  of  Article  VI,  of  the 
Treaty  of  Washington.'' 

>    For.   Rel.    U.     S.    1872,    1873,  involved  in  the  lot  of  their  prin- 

"  Geneva  Arbitration,"  vol.  iv.  pp.  cipals.     It  was  held  in  the  cases 

49,  50.  of  the  Georgia,  Sumter,  NasJnnlle, 

"  "  The  finding  in  the  case  of  the  Tallahassee,  and  Chickamauga  that 

Alabavia  was  of  a  failure  in  respect  Great  Britain  had  not  failed  to  ob- 

to  the  first  and  third  rules  ;  in  the  serve  the  three  rules.    The  cases  of 

case  of  the  Florida,  of  the  first,  sec-  the  Sallie.  Jeff  Davis,  Afiisic,  Bos- 

ond,  and  third  ;  in  the  case  of  the  /on,  and   V.  H.  Joy  were  excluded 

Shena7tdoah,oi\.\\e.  second  and  third  from  consideration  for  want  of  evi- 

respectively.       The    Tuscaloosa,    a  dence."~For.  Rel.  U.  S.  1872,  1873, 

tender  of  the   Alabama,  and    the  "Geneva  Arbitration,"  vol,  iv.  pp. 

Clarence,  Tacony,  and  Archer,  tend-  51,  53. 
ers  of  the  Florida,  were  held  to  be 


NEUTRALITY  42 1 

The  sum  of  $15,500,000  in  gold  was  awarded  to  the  United 
States  as  the  indemnity  to  be  paid  by  Great  Britain  for  the 
satisfaction  of  all  the  claims  referred  to  the  consideration  of 
the  tribunal;  and,  in  accordance  with  the  terms  of  Article  XI. 
of  the  treaty,  it  was  declared  that  "all  the  claims  referred  to 
in  the  treaty  as  submitted  to  the  tribunal  are  hereby  fully, 
perfectly,  and  finally  settled."' 

Results  0/  the  Geneva  Arbitration.  The  effect  of  the  Geneva 
Arbitration  upon  international  law  has  been  much  discussed, 
especially  in  connection  with  a  clause  in  the  treaty  which  binds 
the  high  contracting  parties  "to  observe  these  rules  as  between 
themselves  in  future,  and  to  bring  them  to  the  knowledge  of 
other  maritime  powers,  and  to  invite  them  to  accede  to  them."  '^ 
Neither  power  is  believed  to  have  made  any  special  or  positive 
efforts  to  include  other  states  in  the  operations  of  the  treaty. 
In  so  far  as  the  rules  themselves  are  concerned,  such  action 
seems  hardly  necessary.  Their  effect  has  not  been  to  change 
any  existing  rule  of  international  law,  for  the  strict  observance 
of  neutral  obligation  and  duty  would  require  substantial  com- 
pliance with  their  provisions  by  any  neutral  state  in  time  of  war. 
Their  chief  effect  has  been  to  define  and  make  clear  a  principle 
already  existing,  and  so  generally  sanctioned  by  the  usage  of 
nations  as  to  cause  it  to  be  regarded  as  a  doctrine  of  inter- 
national law.^ 

'  For.  Rel.  U.S.  1872,  1873,  "Ge-  The  correspondence  clearly  estab- 

neva  Arbitration,"  vol.  iv.  p.  53.  lishes  that  there  was  no  disposition 

^  Treaties    and    Conventions    of  on  the  part  of  the  two  powers,  least 

the  United  States,  1776-1887,  p.  481.  so  on  the  part  of  Great  Britain,  to 

' "  Before  an  award  had  been  ren-  make  the  submission ;  and  from  the 
dered  an  attempt  was  made  to  carry  subsequent  silence  we  are  to  infer 
out  the  provisions  of  the  Treaty  of  that  the  three  rules  are  to  be  lim- 
Washington  by  bringing  the  rules  ited  in  their  operation  to  the  single 
to  the  attention  of  the  powers  with  matter  of  the  Alabama  Claims,  and 
a  view  to  their  adoption.  The  as  withdrawn  from  any  proposed 
correspondence  on  this  subject,  reform  of  the  law  of  nations.  It 
which  was  interrupted  in  1872,  was  maybe  added  that  there  was  aeon- 
resumed  in  1873,  and  terminated,  viction  on  the  part  of  both  govern- 
without  result  in  the  way  of  adhe-  ments  that  they  would  not  receive 
sions,  in  1876.  In  January,  1879,  the  assent  of  a  single  state.  Aus- 
the  correspondence  was  submitted  tria  and  Germany  had  early  given 
to  the  Senate  by  President  Grant,  instructions  to  that  effect.     The 


422 


THE   ELEMENTS   OF   INTERNATIONAL  LAW 


Not  the  least  important  of  its  effects,  however,  will  be  found 
to  consist  in  the  example  afforded  of  two  powerful  states 
resorting  to  an  amicable  method  of  terminating  a  dispute 
which  had  aroused  in  both  nations  a  feeling  dangerously  near 
to  hostility,  and  which  threatened  upon  more  than  one  occa- 
sion to  involve  them  in  open  war. 

Right  of  Asylum.  A  state  in  becoming  a  neutral  cannot 
divest  itself  of  its  duties  to  other  states  and  to  their  individ- 
ual subjects  which  are  incumbent  upon  it  in  time  of  peace. 
These  continue  in  force,  but  certain  precautions  incident  to 
and  made  necessary  by  the  fact  of  war  must  be  observed  in 
their  performance. 

Asylum  to  Troops.  A  neutral  is  obliged  to  grant  an  asy- 
lum to  individuals  of  the  enemy  who  come  into  its  territorial 
limits  to  escape  pursuit  or  to  find  protection  from  acts  of 
hostility.  They  become  subject  to  neutral  jurisdiction  so 
soon  as  they  enter  its  territory.  If  fleeing  from  an  enemy, 
they  are  disarmed,  and,  at  the  discretion  of  the  neutral  gov- 
ernment, may  be  removed  to  points  in  the  interior,  and  may 
there  be  subjected  to  such  measures  of  police  supervision  or 
positive  restraint  as  it  may  deem  necessary  to  secure  respect 
for  its  neutrality.  If  in  large  numbers  and  without  means 
of  support,  these  fugitives  are  made  the  subject  of  treaty 
arrangements  and  are  usually  supported  at  the  expense  of 
their  own  government.'  The  French  troops  who  fled  to  Bel- 
gium after  the  battle  of  Sedan  were  disarmed  and  conveyed 

three  rules,  however,  after  having  limore,   pp.   268-273  ;    Creasy,   pp. 

been  greatly  modified  by  Bluntschli  316-345;    Manning,  pp.  239-244; 

and   other  Continental  jurists,  re-  Hall,  pp.  615,  616 ;    II  Halleck,  pp. 

ceived  in  1875  the  assent  of  a  ma-  184-194,  note;   IV  Calvo,  §§  2558- 

jority  of  the  members  of  the  Insti-  2582. 

tute  of  Internationa]  Law  present  'Hall,  §  230;  Creasy,  p.  586; 
at  The  Hague  (Annuaire  1877,  p.  Woolsey,  §  167;  Risley,  pp.  173-175; 
139).  The  approval  of  the  rules  Snow,  p.  120;  Articles  57,  58  Con- 
was  opposed  by  the  English  mem-  ference  of  The  Hague;  II  Ortolan, 
bers  of  the  Institute,  and  by  Eng-  pp.  283-286;  Kliiber,  §§  283-285; 
lish  writers  on  international  law  Vattel,  liv.  iii.  chap.  vii.  §  133;  Heff- 
who  were  not  included  in  its  mem-  ter,  §  149;  II  Halleck,  pp.  183,  184; 
bership." — II  Wharton, Amer.Crim.  IV  Calvo,  §§  2668-2684. 
Law,  §  1908,  pp.  663,664;  III  Phil- 


NEUTRALITY  423 

to  a  point  at  some  distance  from  the  frontier,  and  the  ex- 
pense of  their  maintenance  was  ultimately  defrayed  by  the 
French  Government. 

Asylum  to  Public  and  Private  Armed  Vessels.  A  similar 
right  of  asylum  exists  in  the  case  of  public  and  private  armed 
vessels,  and  to  merchant  ships  belonging  to  either  belligerent. 
They  may  seek  refuge  in  a  neutral  port  from  the  perils  of  the 
sea  or  from  a  superior  force  of  the  enemy.  The  protection 
of  the  neutral  government  is  extended  to  them  so  soon  as 
they  come  within  its  territorial  waters ;  and  it  may  resist,  by 
force  if  need  be,  any  hostile  attempts  that  are  directed  against 
them  while  within  its  jurisdiction.'  As  the  favor  is  that  of 
asylum  only,  the  asylum  may  terminate  at  the  will  of  the 
neutral.  When  vessels  of  two  belligerents  are  found  in  a  neu- 
tral port  at  the  same  time,  it  is  within  the  power  of  the  neutral 
to  establish  such  regulations  in  regard  to  their  conduct  and 
departure  as  will  make  it  impossible  for  an  engagement  to 
take  place  in  the  immediate  vicinity  of  the  port.  This  object 
is  usually  attained  by  the  enforcement  of  the  tivcnty-four-Jiour 

'"Belligerent  ships -of -war,  pri-  or  their  prizes,  either  belligerent 
vateers,  and  the  prizes  of  either,  has  a  right  to  assume  its  existence, 
are  entitled,  on  the  score  of  hu-  and  enter  upon  its  enjoyment,  sub- 
manity,  to  temporary  refuge  in  neu-  ject  to  such  regulations  and  lini- 
tral  waters  from  casualties  of  the  itations  as  the  neutral  state  may 
sea  and  land."— The  President  and  please  to  prescribe  for  its  own  se- 
Prize,  VII  Opin.  Att.-Gen.  p.  122  curity."— Ibid.  "The  United  States 
(Gushing,  1855).  "  By  the  law  of  na-  have  not  by  treaty  with  any  of  the 
tions  belligerent  ships-of-war,  with  present  belligerents  bound  them- 
their  prizes,  enjoy  asylum  in  neutral  selves  to  accord  asylum  to  either; 
ports  for  the  purpose  of  obtaining  but  neither  have  the  United  States 
supplies  or  undergoing  repairs,  ac-  given  notice  that  they  will  not  do 
cordingtothediscretionof  the  neu-  it;  and,  of  course,  our  ports  are 
tral  sovereign,  who  may  refuse  the  open  for  lawful  purposes  to  the 
asylumabsolutely,  or  grant  it  under  ships-of-war  of  either  Great  Brit- 
such  conditions  of  duration,  place,  ain,  France,  Russia,  Turkey,  or  Sar- 
and  other  circumstances  as  he  shall  dinia." — Ibid.  IITwiss,  §§  219-222; 
see  fit;  provided  that  he  must  be  Risley,  pp.  175.  ^1^''  Dana's  Whea- 
strictly  impartial  in  this  respect  ton,  §  429-434;  III  Dig.  Int.  Law,  § 
towards  all  the  belligerent  powers."  394;  VII  Opin.  Att -Gen.  p.  122; 
—Ibid.  "Where  the  neutral  state  Hall,  §  231 ;  Boyd's  Wheaton,  §434- 
has  not  signified  its  determination  434e;  Creasy,  pp.  584-586;  Wool- 
to  refuse  the  privilege  of  asylum  to  sey,§  167;  II  Halleck,p.  182;  II  Or- 
belligerent  ships-of-war,  privateers,  tolan,  pp.  286-289. 


424 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


rule,  by  which,  when  one  belligerent  vessel  departs,  the  other 
is  forbidden  to  sail  within  twenty-four  hours.  This  rule  has 
been  so  frequently  and  generally  applied  in  recent  times  as  to 
have  received  the  universal  sanction  of  nations.' 


Neutral  Rights 

Nature  and  Character,  The  law  of  nations  not  only  im- 
poses certain  duties  upon  neutral  states  in  time  of  war — it 
also  clothes  them  with  certain  rights  and  immunities  which 
the  belligerents  are  bound  to  respect  in  the  conduct  ot  their 
military  and  naval  operations.  These  so-called  neutral  rights, 
however,  do  not  differ  in  any  respect  from  the  rights  which 
are  universally  recognized  as  belonging  to  every  state  in  the 
civilized  world  in  virtue  of  its  sovereignty  and  independence; 
and  a  neutral  state,  as  such,  receives  no  addition  to  its  sover- 
eign rights,  either  in  number  or  extent,  at  the  outbreak  of  war. 
It  is  at  peace  with  both  belligerents,  and  they  have  no  greater 

not  to  hover  outside  of  the  Aus- 
trian ports,  nor  to  follow  their  en- 
emies out  of  them;  it  also  im- 
posed the  twenty-four-hour  rule 
on  privateers,  and,  in  the  case  of 
ships-of-war,  required  the  word  of 
the  captain  that  he  would  not  com- 
mit hostilities."— Hall,  p.  631,  note. 
The  efficacy  of  what  is  called  the 
"  twenty -four-  hour  rule"  consists 
largely  in  the  facility  and  certain- 
ty with  which  it  can  be  enforced. 
The  neutral  state  does  not  under- 
take to  say  which  one  of  two  bel- 
ligerent vessels  of  war  shall  first 
leave  the  neutral  port.  The  in- 
stant, however,  that  one  of  them 
takes  its  departure  the  rule  be- 
comes operative  upon  the  other, 
which  is  forbidden  to  leave  port 
until  twenty-four  hours  shall  have 
elapsed  after  the  departure  of  its 
predecessor.  See,  also,  I  Pistoye 
et  Duverdy,  p.  108 ;  Bernard,  Neu- 
trality of  Great  Britain,  p.  273; 
Bluntschli,  §  777  bis. 


Ill  Ortolan,  pp.  291-298;  Hall, 
pp.  631-633;  Bluntschli,  §  776 
bis;  n  Halleck,  p.  152;  Risley, 
pp.  206  -  208.  So  long  ago  as 
1759  Spain  laid  down  the  rule 
that  the  first  of  two  vessels  of  war 
belonging  to  different  belligerents 
to  leave  one  of  her  ports  should 
only  be  followed  by  the  other  after 
an  interval  of  twenty-four  hours. — 
Ortolan,  Dip.  de  la  Mer,  p.  257.  "  In 
1778  the  Grand  Duke  of  Tuscany 
forbade  both  ships-of-war  and  pri- 
vateers to  go  out  for  twenty-four 
hours  after  a  ship,  whether  enemy 
or  neutral  {di  qualsh'oglia  bandi- 
era)." — De  Martens,  Rec.  vol.  iii.  p. 
25.  "The  Genoese  rule  was  the 
same;  Venice  was  contented  with 
the  promises  of  the  departing  com- 
mander that  he  would  not  molest 
an  enemy  or  neutral  for  twenty- 
four  hours,  but  she  retained  priva- 
teers for  that  time  in  port."— Ibid. 
p.  8.  "The  Austrian  proclamation  of 
neutrality  of  1803  ordered  vessels 


NEUTRALITY  425 

right  to  commit  acts  of  hostility  within  Its  jurisdiction  in  time 
of  war  than  in  time  of  peace.  The  neutral,  therefore,  may  not 
only  insist  upon  a  complete  immunity  from  such  acts  of  bel- 
ligerency, but  may  use  force  to  compel  respect  to  its  sover- 
eignty within  the  sphere  of  its  exclusive  jurisdiction,  and  to 
resist  acts  of  aggression  originating  with  either  belligerent, 
and  directed  against  the  neutral  state,  or  against  the  other 
belligerent,  in  neutral  territory.  Violations  of  neutral  right 
have  occurred  not  infrequently  in  the  past,  and,  as  the  sphere 
within  which  neutral  rights  are  each  year  more  strongly  in- 
sisted upon  is  steadily  increasing,  such  violations  are  likely  to 
occur  quite  as  frequently  in  the  future. 

Imviiinity  of  Neutral  Waters  from  Acts  of  Belligerency.  A 
neutral  state  may,  therefore,  insist  upon  an  entire  immu- 
nity from  acts  of  belligerency  within  its  territorial  waters.  A 
public  vessel,  by  sailing  through  the  coast  sea  of  a  neutral 
state,  in  no  way  violates  its  neutralit3^  This  is  especially  true 
when  the  act  is  done  in  the  simple  prosecution  of  a  voyage, 
and  when  not  in  pursuit  of  the  enemy.  It  has  been  seen  that 
a  belligerent  vessel,  either  public  or  private,  is  entitled  to  an 
asylum  in  the  port  of  a  neutral  from  danger  of  capture  by  an 
enemy  as  well  as  from  the  perils  of  the  sea.  An  armed  vessel, 
therefore,  which  pursues  an  enemy  into  neutral  waters,  or 
effects  a  capture  there,  has  violated  the  sovereignty  of  the 
neutral  state.  It  may  be  forcibly  compelled  to  desist  from 
the  pursuit,  and  all  captures  made  by  it  in  neutral  jurisdiction 
are  illegal,  and  must  be  restored.  The  sovereignty  of  the  neu- 
tral state  has  been  invaded,  and  it  may  resort  to  such  measures 
of  prevention  or  redress  as  it  may  deem  best  suited  to  the 
emergency  of  the  case.' 

'  "A  capture  made  within  the  neu-  and  the  capture  is  not  an  injury  for 

tral  territory  is,  as  between  the  bel-  which  redress  can  be  sought  from 

ligerents,  rightful ;  and  its  validity  the  neutral  sovereign. "—Ibid.  "The 

can  only  be  questioned  by  the  neu-  question  of  prize  or  no  prize  belongs 

tral  state." — The  Anne,  3  Wheaton,  exclusively  to  the  courts  of  the  cap- 

435.    "If  the  captured  vessel  com-  tor,  and  in  no  case  does  a  neutral 

mence  hostilities  upon  the  captor,  assume    the    right  of  deciding  it. 

she  forfeits  the  neutral  protection,  But   offences   may   be  committed 


426 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


Tinmunity  of  Neutral  Territory.  A  neutral  state  is  enti- 
tled to  a  similar  immunity  from  acts  of  belligerency  on  land. 
Troops  fleeing  from  an  enemy  may  seek  an  asylum  in  neutral 
territory.  They  must  release  their  prisoners,  however,  give 
up  all  booty  and  captured  property,  and  surrender  their  arms 
during  the  period  of  their  sojourn  upon  neutral  soil.  The  en- 
emy must  cease  his  pursuit  at  the  neutral  boundary.  Should 
he  continue  it  farther,  his  act  is  one  of  invasion,  and  would  be 
properly  regarded  as  an  act  of  hostility  by  the  neutral  state 
whose  sovereignty  is  offended.  Should  either  belligerent  un- 
dertake to  perform  acts,  within  the  territory  of  a  friendly  state, 
which  are  inconsistent  with  the  neutrality  of  that  state,  the 
neutral  may  not  only  cause  such  acts  to  be  immediately  de- 
sisted from,  but  may  punish  the  agents  of  the  belligerent,  if 
their  acts  are  in  violation  of  its  municipal  laws,  or  may  forcibly 
eject  them  from  its  territory.' 


by  a  belligerent  against  a  neutral, 
in  his  military  operations,  which  it 
would  be  inconsistent  with  the  neu- 
tral character  to  permit,  and  which 
give  to  the  other  belligerent,  the 
party  injured  by  those  operations, 
claims  upon  the  neutral  which  he 
is  not  at  liberty  to  disregard.  In 
such  a  situation  the  neutral  has  a 
double  duty  to  perform  :  he  must 
vindicate  his  own  rights  and  afford 
redress  to  the  party  injured  by 
their  violation.  If  the  wrong-doer 
comes  completely  within  the  power 
of  the  neutral,  the  practice  of  this 
government  is  to  restore  the  thing 
wrongfully  taken."  —  The  Santis- 
sz'ina  Trinidad,  i  Brockenbrough, 
478.  "  If  a  ship  or  cargo  is  enemy 
property,  or  if  either  be  otherwise 
liable  to  condemnation,  the  cir- 
cumstance that  the  vessel,  at  the 
time  of  the  capture,  was  in  neutral 
waters  would  not,  by  itself,  avail 
the  claimants  in  a  prize-court.  It 
might  constitute  a  ground  of  claim 
by  the  neutral  power,  whose  terri- 
tories had   suffered   trespass,   for 


apology  or  indemnity.  But  neither 
an  enemy,  nor  a  neutral  acting  the 
part  of  an  enemy,  can  demand  res- 
titution of  captured  property  on 
the  sole  ground  of  capture  in  neu- 
tral waters."  —  The  Sir  William 
Peel,  5  Wallace,  517;  the  Adela,  6 
Wallace,  266.  "  In  cases  of  viola- 
tion of  our  neutrality  by  any  of  the 
belligerents,  if  the  prize  comes  vol- 
untarily within  our  territory,  it  is 
restored  to  the  original  owners  by 
the  courts." — La  Ainistad  de  Rues, 
5  Wheaton,  385.  "  But  their  juris- 
diction for  this  purpose,  under  the 
law  of  nations,  extends  only  to  res- 
titution of  the  specific  property, 
with  costs  and  expenses  during  the 
pendency  of  the  suit,  and  does  not 
extend  to  the  infliction  of  vindic- 
tive damages  or  compensation  for- 
plunderage,  as  in  ordinary  cases  of 
marine  torts." — Ibid. 

'  II  Halleck,  p.  177  ;  II  Twiss,  pp. 
440-444;  III  Phillimore,  p.  285; 
Manning,  pp.  245-250;  Hautefeu- 
ille,  tit.  iv.  chap.  i. ;  Risley,  pp.  172, 
173;   Walker,  Manual,  §§   59,  60; 


NEUTRALITY  42/ 

Demand  for  Restitution,  by  Whom  Made.  "  Though  it  is  the 
duty  of  the  captor's  country  to  make  restitution  of  the  proper- 
ty  thus  captured  within  the  territorial  jurisdiction  of  the  neu- 
tral's state,  yet  it  is  the  technical  rule  of  the  prize-courts  to  re- 
store to  the  individual  claimant,  in  such  a  case,  only  when  on 
the  application  of  the  neutral  government  whose  territory  has 
been  thus  violated.  This  rule  is  founded  on  the  principle  that 
the  neutral  state  alone  has  been  injured  by  the  capture,  and 
that  the  hostile  claimant  has  no  right  to  appear  for  the  pur- 
pose of  suggesting  the  invalidity  of  the  capture."  ' 
This  subject  is  illustrated  by  the  following  cases : 
Case  of  the  "  Chesapeake."  The  Chesapeake  was  one  of  a  line 
of  passenger  steamers  plying  between  the  ports  of  New  York 
and  Portland,  Maine.  In  1863,  while  on  her  way  between 
those  points,  she  was  forcibly  seized  by  a  number  of  her  pas- 
sengers, who  claimed  to  be  in  the  naval  service  of  the  Confed- 
erate States.  In  effecting  the  seizure  several  of  the  crew  were 
killed  and  wounded,  and  the  rest  were  set  on  shore.  The  ves- 
sel was  navigated  for  a  short  time  by  its  captors,  but  was  finally 
abandoned  by  them,  in  an  unfrequented  bay  on  the  coast  of 
Nova  Scotia.  She  was  afterwards  found  and  seized,  in  Brit- 
ish territorial  waters,  by  a  public  armed  vessel  of  the  United 
States.  The  act  was  complained  of  by  the  British  Govern- 
ment as  a  violation  of  its  neutrality,  and  a  demand  was  made 
that  the  vessel  be  surrendered  and  the  prisoners  restored  to 
British  soil.  The  demand  was  acceded  to  by  the  United 
States,  who  disclaimed  any  intention  of  exercising  any  author- 
ity within  the  territorial  jurisdiction  of  Great  Britain.  The 
government  of  the  United  States,  in  complying  with  the  de- 
mand for  the  surrender  of  the  property  and  persons,  proposed 

Dana's Wheaton.§§ 426, 427;  Snow,  Manual,   p.    133;    II   Halleck,  pp. 

pp.  119-121;    IV   Calvo,  §§    2644-  204,    205;    the   Anne,    5    C.    Rob- 

2652.  Rep.  373 ;  Snow's  Cases,  Int.  Law, 

'Boyd's   Wheaton,   §  430;    the  p.  393;    Heffter,    §§  146-150;    the 

Amie,  3  Wheaton,  p.   435 ;    Man-  General  Armstrong,  Snow's  Cases, 

ning.  pp.  465-467  ;    Hall,  §  227 ;   II  p.    396;    the   Perle,  I    Pistoye    et 

Twiss,  pp.  442, 443;  Snow,  pp.  no-  Duverdy,   100;   Snow's  Cases,  p. 

123;  Ribley,  pp.  172,  173;  Walker,  398. 


428  THE   ELEMENTS   OF  INTERNATIONAL   LA^Y 

that  those  who  had  been  concerned  in  the  forcible  seizure  of 
the  vessel  should  be  surrendered,  with  a  view  to  their  prosecu- 
tion for  the  crime  of  piracy.  The  British  Government  declined 
to  consider  this  proposition  until  the  captured  persons  had 
been  returned  to  its  territorial  jurisdiction.  The  ship  was 
afterwards  restored  to  its  owners.' 

Case  of  the  "  Florida^  In  1864  the  Confederate  war  steamer 
Florida  entered  the  port  of  Bahia,  Brazil,  for  the  purpose  of 
obtaining  coal  and  provisions,  and  of  efifecting  some  necessary 
repairs.  While  thus  engaged,  the  Wacliusett,  a  public  armed 
vessel  of  the  United  States,  entered  the  same  port.  The 
Brazilian  Government,  fearing  a  conflict,  took  such  precautions 
as  it  deemed  proper  to  prevent  its  occurrence,  and,  in  accord- 
ance with  its  port  regulations,  assigned  an  anchoring-ground 
to  each  of  the  belligerent  vessels.  The  commander  of  the 
Wachiisett,  taking  advantage  of  the  absence,  at  night,  of  a 
number  of  the  ofificers  and  crew  of  the  Florida,  sent  a  boat's 
crew  to  attach  a  cable  to  the  Confederate  steamer,  towed  her 
out  of  the  harbor,  and  conveyed  her  as  a  prize  to  the  United 
States.  This  flagrant  violation  of  neutral  rights  w  is  at  once 
complained  of  by  the  Brazilian  Government,  and  the  act  was 
promptly  disavowed  by  the  United  States.  An  apology  was 
offered,  and  reparation  made  by  saluting  the  Brazilian  flag 
in  the  port  of  Bahia.  The  crew  of  the  Florida  were  restored 
to  Brazilian  jurisdiction.  The  captured  vessel  foundered  in 
Hampton  Roads,  under  circumstances  which  were  satisfacto- 
rily  explained  to  the  Brazilian  Government.''  "The  restitution 
of  the  ship  having  thus  become  impossible,  the  President  ex- 
pressed his  regret  that  the  sovereignty  of  Brazil  had  been  vio- 
lated, dismissed  the  consul  at  Bahia,  who  had  advised  the 
offence,  and  sent  the  commander  of  the  Wachusett  before  a 
court-martial."' 

J  I  Dig.  Int.  Law,  §  27;   Dana's  p.624;  Dana's Wheaton, p. 526, note 

Wheaion,  §  430,  note  207  ;  IV  Cal-  209.     See.  also,  Secretary  Seward's 

vo,  §  2659.  letter  of  explanation,  Foreign  Rela- 

'  Seward  to  Da  Silva,  December  tions  of  the  U.  S.  1863,  1864. 

26,1864.     Ill  Dig.  Int.  Law,  §§  27,  =  Bernard,    Neutrality    of    Great 

399 ;  Boyd's  Wheaton,  p.  499;  Hall,  Britain,  etc.  p.  433. 


NEUTRALITY  429 

Neutral  Territory.  As  hostilities  in  time  of  war  can  only 
lawfully  take  place  in  the  territory  of  either  belligerent,  or  on 
the  high  seas,  it  follows  that  neutral  territory,  as  such,  is  en- 
titled to  an  entire  immunity  from  acts  of  hostility  ;  it  cannot 
be  entered  by  armed  bodies  of  belligerents,  because  such  an  en- 
try would  constitute  an  invasion  of  the  territory,  and  therefore 
of  the  sovereignty,  of  the  neutral ;  nor,  for  the  same  reason,  can 
a  public  armed  vessel  of  either  belligerent  enter  the  territorial 
waters  of  a  neutral  with  intent  to  do  an  act  of  hostility.  The 
territory  and  territorial  waters  of  a  neutral  state  are,  therefore, 
sacred  from  belligerent  intrusion,  save  with  the  consent  of  the 
neutral  government.'  Such  consent  may  be  granted,  or  de- 
nied, to  both  belligerents  ;  but,  according  to  the  present  rule, 
cannot  be  granted  to  either  to  the  exclusion  of  the  other. 

Captures  made  in  neutral  waters  are  restored,  or  indemni- 
fied, even  after  they  have  been  condemned  by  a  prize-court, 
since  such  courts  have  no  jurisdiction  over  prizes  made  except 
on  the  high  seas  or  within  the  territorial  waters  of  a  belliger- 
ent. "  It  belongs,  however,  exclusively  to  the  neutral  govern- 
ment to  raise  objection  to  a  title  founded  upon  a  capture  made 
within  neutral  territory.  So  far  as  the  adverse  belligerent  is 
concerned,  he  has  no  right  to  complain  if  the  case  be  tried  be- 
fore a  competent  court. "  The  government  of  the  owner  of 
the  captured  property  may,  indeed,  call  the  neutral  to  account 
for  permitting  a  fraudulent,  unworthy,  or  unnecessary  viola- 
tion of  its  jurisdiction,  and  such  permission  may,  according  to 
the  circumstances,  convert  the  neutral  into  a  belligerent."^ 

The  right  of  a  public  armed  vessel  of  a  belligerent  to  enter 
a  neutral  port,  when  not  in  distress,  is  usually  conceded,  and 
Is  presumed,  unless  notice  to  the  contrary  is  formally  given  by 
the  neutral  government.     They  may  be   forbidden  to  enter 

•  III  Phillimore,  p.  285  ;   II  Hal-  Mil    Phillimore,    p.    287;    the 

leek,  p.   177  ;    Dana's   Wheaton,   §  Arrogaiite  Barcelones,  7  Wheaton, 

426;  Risley,  pp.  172,   173;  Hall,  §§  496;    La    Amistad,    5     Ibid.    390; 

227,228;  II  Twiss,  §  217;    IV  Cal-  Dana's    Wheaton,  §  428;  Hall,    § 

vo,  §§   2654-2667;    Heffter,   §149;  227. 

Kliiber,  §  285;   Bluntscl  li,  §§  784-  '  J^  Phillimore,  p.  287;  Dana's 

786.  Wheaton,  §  431  ;  Hail,  §  227, 


430  THE   ELEMENTS  OF   INTERNATIONAL   LAW 

certain  ports,  or  to  enter  neutral  territory  at  all  except  in  dis- 
tress, but  the  rule  must  bear  equally  upon  both  belligerents.' 
Privateers  may  be  denied  entrance  to  neutral  ports,  especially 
if  the  neutral  government  is  a  party  to  the  Declaration  of 
Paris.  The  bringing-in  of  prizes  is  still  authorized  by  exist- 
ing treaties,  though  the  present  tendency  is  to  restrict  the 
right  within  the  narrowest  limits,  if  not  to  deny  it  altogether." 
The  condemnation  or  sale  of  such  prizes  by  a  neutral  prize- 
court,  or  by  a  belligerent  prize-court  sitting  in  neutral  terri- 
tory, is  no  longer  permitted. 

A  belligerent  war-ship  which  has  been  permitted  to  enter  a 
neutral  port  may  procure  there  such  supplies,  not  contraband 
of  war,  as  may  be  permitted  by  the  neutral  government.  The 
supply  of  coal  is  now  made  the  subject  of  special  regulation, 
and  only  a  limited  amount  is  allowed  to  be  taken  in.' 

The  present  tendency  of  the  rules  of  international  law  is 
towards  greater  stringency  in  respect  to  the  articles  of  supply 
which  a  belligerent  vessel  of  war  may  receive  in  a  neutral  port. 
"  When  vessels  were  at  the  mercy  of  the  winds  it  was  not  pos- 
sible to  measure  with  accuracy  the  supplies  which  might  be 
furnished  them,  and,  as  blockades  were  seldom  continuously 
effective,  and  the  nations  which  carried  on  distant  naval  op- 
erations were  all  provided  with  colonies,  questions  could  hardly 
spring  from  the  use  of  foreign  possessions  as  a  source  of  sup- 


'II     Halleck,    p.    183;    Dana's  port  of  her  own  country,  or  a  near- 

Wheaton,  §  434  ;   VII  Opin.  Att.-  er  destination.     A   second  supply 

Gen.  p.  122  ;   Hall,  §§  230,  231  ;  the  was  not  to  be  given  within  three 

ExchaJige,  7  Cranch,  116.  months  save  with  the  express  per- 

"^  II  Twiss,  §  201  ;  I  Hautefeuille,  mission  of  the  government. — Earl 

p.  380  ;  VII  Opin.  Att. -Gen.  p.  122;  Russell  to  Admiralty  Commission- 

IV  Calvo,  §§  2676-2683.  ers,  January  31,  1862,  State  Papers, 

'Hall,  pp.  607,  608;  II  Halleck.  1871,  Ixxi.  p.  167.     Similar  instruc- 

p.  181  ;  Martens,  Precis  du  Droit  de  tions  were    issued  by  the  United 

Gens,  §  312.    During  the  American  States    Government     during     the 

Civil  War,  the  British  Government  Franco-PrussianWar. — President's 

(on  January  31,  1S62)  adopted  the  Proclamation  of  October  8,    1870, 

rule  that  a  belligerent  armed  ves-  16  Stat,  at  Large,  1135-     See,  also, 

sel  was  to  be  permitted  to  receive,  II    Ortolan,   p.  286;    Bluntschli,  § 

at  any  British  port,  a  supply  of  coal  773  ;  IV  Calvo,  §§  2676-2684  ;  Hefi- 

sufficient  to  enable  her  to  reach  a  ter,  §  149. 


NEUTRALITY  43 1 

plies.  Under  the  altered  conditions  of  warfare  matters  are 
changed.  When  supplies  can  be  meted  out  in  accordance 
with  the  necessities  of  the  case,  to  permit  more  to  be  obtained 
than  can,  in  a  reasonably  liberal  sense  of  the  word,  be  called 
necessary  for  reaching  a  place  of  safety  is  to  provide  the  bel- 
ligerent with  means  of  aggressive  action  ;  and,  consequently, 
to  violate  the  essential  principles  of  neutrality."' 

Neutrality  Laws 

Character  and  Purpose.  Those  municipal  laws  of  a  state 
which  are  intended  to  prevent  violations  of  its  neutrality  in 
time  of  war  are  called,  in  general,  neutrality  laws.  The  title 
varies  in  different  states,  and  in  many  cases  is  based  upon  the 
particular  violation  of  neutrality  which  was  first  made  the  sub- 
ject of  positive  legislation,' 

Neutral  Obligation  Determined  by  International,  not  Munici- 
pal, Law.  It  has  been  seen  that  the  neutral  obligation  of  a 
state  is  determined  by  international,  and  not  by  municipal,  law. 
The  conduct  of  every  state  which  assumes  the  position  of  a 
neutral  in  war  is,  therefore,  measured  by  the  standard  of  inter- 
national law.  If  it  fails  in  the  performance  of  a  neutral  duty, 
it  cannot  plead  the  inefficiency  of  its  municipal  laws  in  exten- 
uation of  its  offence,  nor  will  an  exact  and  rigorous  enforce- 
ment of  such  laws  be  regarded  as  a  fulfilment  of  its  obligation 
if  their  provisions  are  not  in  accordance  with  the  international 
standard.  The  neutrality  laws  of  a  state  may  therefore  be,  in 
point  of  efficiency,  less  than,  equal  to,  or  greater  than  the  stand- 
ard of  neutral  obligation  as  determined  by  the  law  of  nations; 
or  there  may  be  no  such  municipal  laws.  In  all  these  cases 
the  responsibility  of  the  state  is  precisely  the  same.' 

'Hall,  pp.  607,  608 ;    II  Ortolan,  in    other    European    armies.     For 

p.  28(^;  Bluntschli,  §  ^T^;   Heffter,  this  reason  the  British  neutrality 

§  149  ;  IV  Calvo,  §  2591 .  laws  have  received  the  name  of  the 

'  In  England  the  first  legislation  "Foreign  Enlistment  Acts." 

on  the  subject  was  caused,  in  the  ^  II  Twiss,  §  216  ;  III  Phillimore, 

time  of  James  I.,  by  the  enlistment  pp.  225,  226  ;    III   Dig.  Int.  Law,  § 

of  recruits  in  England  for  service  402a,  p.  645,  par.  v. ;  Fish  to  Motley, 


432  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

Most  modern  states,  however,  have  covered  this  field  of 
legislation  more  or  less  completely,  either  with  positive  laws, 
defining  rules  of  conduct  for  persons  subject  to  their  jurisdic- 
tion, and  imposing  suitable  penalties  for  their  violation,  or  by 
general  laws,  or  constitutional  provisions,  vesting  discretionary 
powers  in  certain  departments  of  government,  to  be  used  for 
the  purpose  of  preventing  violations  of  neutrality  on  the  part 
of  individuals.  Violations  of  neutral  duty  by  a  state,  in  its 
corporate  capacity,  are  questions  of  state  policy  that  are  rarely 
made  the  subject  of  municipal  legislation.  Neutrality  laws,  as 
such,  have  chiefly  to  do  with  the  acts  of  individuals.  They 
permit  or  forbid  particular  acts,  and  vest  suitable  powers  of 
enforcement  in  certain  officials  or  departments  of  govern- 
ment. 

English  Neutrality  Laivs.  The  first  legislation  in  England 
on  the  subject  of  neutrality  w^as  had  in  the  reign  of  James  I. 
The  statute  was  intended  to  regulate,  rather  than  prohibit,  the 
enlistment  of  British  subjects  in  foreign  services.'  This  statute 
was  twice  amended  during  the  reign  of  George  II.,  each  time 
in  the  direction  of  greater  severity.'^  The  first  general  law  on 
the  subject  of  neutrality  was  the  Foreign  Enlistment  Act 
passed  in  1819,  during  the  regency.^  It  remained  in  force 
until  1870,  when  the  present  act  was  passed.* 

"The  statute  of  1819  was,  with  a  few  unimportant  excep- 
tions, never  attempted  to  be  enforced  until  the  period  of 
the  American  Civil  War.  Its  deficiencies  were  then  fully  dis- 
covered, and  the  escape  of  the  Alabama,  the  Treaty  of  Wash- 
ington in  1 87 1,  and  the  Geneva  x\rbitration  were  the  grave 
consequences."^ 

The  neutrality  laws  now  in  force  in  the  British  empire  are 

September  25,  1869;  III  Dig.  Int.  '  3  James  I.  chap.  iv. 

Law,  §  403,  p.  653;    II  Ferguson,  '9   George    11.  chap.   xxx. ;    29 

§   226;    Hall,  §§  19-22;    Wharton,  George  II.  chap.  xvii. 

Com.  Amer.  Law,  §  241  ;  Wharton,  ^  59  George  III.  chap.  Ixix. 

Crim.  Law,  9th  ed.  §  1901  ;   North  *  33  and  34  Vict.  chap.  xc. 

American   Review,   October,    1866,  ^  III  Phillimore,  p.  244;    II  Hal" 

p.  493  ;    II   Halleck,  pp.    305-307  ;  leek,  pp.  205.  206, 

IV  Calvo,  §§  261 5-2617. 


NEUTRALITY  433 

those  contained  in  what  is  known  as  the  Foreign  EnHstment 
Act  of  1870.  They  extend  to  all  the  dominions  of  her  Maj- 
esty, including  the  adjacent  territorial  waters.  The  act  forbids 
British  subjects  to  accept,  or  agree  to  accept,  a  commission  in 
the  military  or  naval  service  of  a  state  at  war  with  any  state 
with  which  her  Majesty  is  at  peace ;  to  leave  the  realm  with 
intent  to  engage  in  such  service,  or  to  induce  another  person 
to  embark  under  false  representations  as  to  such  service ;  and 
imposes  a  penalty  upon  any  master  of  a  ship  who  knowingly 
takes  such  persons  on  board  ship,  with  intent  to  carry  them  to 
such  state.  It  is  also  forbidden  under  severe  penalties  of  fine 
and  imprisonment — 

(a.)  "  To  build,  or  agree  to  build,  or  to  cause  to  be  built,  any 
ship  with  intent  or  knowledge,  or  having  reasonable  cause  to 
believe  that  the  same  shall  or  will  be  employed  in  the  military 
or  naval  service  of  any  foreign  state  at  war  with  any  friendly 
state." 

{/k)  "  To  issue  or  deliver  any  commission  for  any  ship  with 
intent  or  knowledge,  or  having  reasonable  cause  to  believe, 
that  the  same  shall  or  will  be  employed  in  the  military  or 
naval  service  of  any  foreign  state  at  war  with  any  friendly 
state." 

(c.)  "  To  equip  any  ship,  with  intent  or  knowledge,  or  hav- 
ing reasonable  cause  to  believe,  that  the  same  shall  or  will  be 
employed  in  the  military  or  naval  service  of  any  foreign  state 
at  war  with  any  friendly  state." 

(d.)  "  To  despatch,  or  cause  or  allow  to  be  despatched,  any 
ship  with  intenr  or  knowledge,  or  having  reasonable  cause  to 
believe,  that  the  same  shall  or  will  be  employed  in  the  military 
or  naval  service  of  any  foreign  state  at  war  with  a  friendly 
state." 

When  a  ship  is  built  by  the  order  of  a  foreign  state  at  war 
with  a  friendly  state,  the  presumption  is  that  it  is  intended  for 
the  naval  service  of  the  former  state. 

It  is  also  forbidden  to  increase  the  armament,  equipment,  or 
force  of  such  ships,  or  to  aid  in  their  construction  or  equip- 
ment, and  it  is  also  forbidden  to  fit  out,  or  aid  or  assist  in  fit- 


434 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


ting  out,  any  expedition  against  the  dominions  of  a  friendly- 
state.  The  ships  engaged  in  such  acts  are  to  be  forfeited,  and 
penalties  of  fine  and  imprisonment  are  to  be  imposed  upon  all 
persons  violating  any  of  the  provisions  of  the  act.' 

The  provisions  of  this  act  are  of  the  most  stringent  charac- 
ter, and,  if  rigidly  enforced,  are  calculated  to  prevent  any  act, 
on  the  part  of  any  person  within  the  jurisdiction  of  Great 
Britain,  which  can,  in  the  remotest  degree,  compromise  the 
neutrality  of  the  British  Government. 

Neutrality  Laws  of  the  United  States.  The  neutrality  laws 
of  the  United  States  are  chiefly  contained  in  the  acts  of  June 
5,  1794,  and  April  20,  1818.  By  these  acts  it  is  declared  a  mis- 
demeanor for  any  citizen  of  the  United  States  to  accept  or 
exercise  a  commission  to  serve  a  foreign  state  in  war  against 
any  friendly  state  ;  or  to  enlist,  or  enter  himself,  or  hire  or  re- 
tain another  person  to  enlist,  or  to  go  beyond  the  jurisdiction 
of  the  United  States  to  enlist,  or  with  intent  to  be  enhsted, 
into  such  foreign  service ;  or  to  fit  out  or  arm,  or  to  increase 
or  augment  the  force  of  any  armed  vessel,  with  the  intent  that 
such  vessel  shall  be  employed  in  the  service  of  a  power  at  war 
with  a  friendly  state ;  or  to  begin,  set  on  foot,  or  provide  or 
prepare  the  means  for,  any  military  expedition  or  enterprise 
against  the  territory  of  any  foreign  state  with  whom  the 
United  States  is  at  peace. 

The  President  is  authorized  to  compel  any  foreign  vessel  to 
depart  which,  by  the  law  of  nations  or  by  treaty,  ought  not 
to  remain  within  the  territorial  waters  of  the  United  States, 
and  is  given  power  to  use  the  public  armed  force  to  carry  the 
provisions  of  the  act  into  effect,  and  to  enforce  the  observance 
of  the  neutral  duties  required  by  law." 

It  is  worthy  of  remark  that  the  neutrality  laws  of  the  United 
States,  though  passed  nearly  seventy  years  ago,  are  at  the 
present  time  fully  in  accordance  with  the  standard  of  neutral 
obligation  as  determined  by  international  law. 

'  33  and  34  Vict.  chap.  xc. ;  III  States.  §§  5281-5291;  II  Halleck, 
Phillimore,  pp.  236-242.  pp.  199-204. 

"  Revised  Statutes  of  the  United 


NEUTRALITY  435 

The  laws  of  both  England  and  the  United  States  are  silent 
upon  the  question  of  the  manufacture  and  sale  of  contraband 
of  war,  within  their  territorial  jurisdiction,  except  in  the  case 
of  building,  arming,  or  equipping  ships,  fitted  for,  or  adapt- 
ed to,  warlike  uses.  Dealing  in  contraband  is  forbidden  in 
England,  by  proclamation,  at  the  outbreak  of  a  foreign 
war.  It  has  never  been  forbidden  in  the  United  States.  The 
policy  of  both  governments  has  been  to  leave  this  question 
to  be  regulated  by  belligerents,  in  the  exercise  of  the  pow- 
ers placed  in  their  hands  for  that  purpose  by  the  law  of 
nations. 

Neutrality  Laws  of  Other  States.  The  provisions  of  the 
French  law  on  the  subject  of  neutrality  are  those  contained  in 
Articles  84  and  85  of  the  Penal  Code.  The  first  of  these  im- 
poses a  penalty  of  banishment  for  any  conduct  of  a  subject 
which,  without  the  approval  of  his  government,  exposes  the 
state  to  a  declaration  of  war.  If  war  actually  results,  the  pun- 
ishment is  increased  to  transportation.  The  second  article 
punishes  with  banishment  any  acts  of  a  subject  calculated  to 
expose  Frenchmen  to  reprisals.  The  precise  acts  which  are  so 
punishable  are  left  to  judicial  determination ;  and  thus  far  but 
three  cases  have  arisen  in  which  the  laws  were  regarded  as  ap- 
plicable. The  responsibility  of  making  suitable  regulation  on 
the  subject  of  neutrality  rests,  in  France,  upon  the  govern- 
ment, and  is  usually  made  the  subject  of  proclamation,  when- 
ever the  outbreak  of  war  makes  it  necessary  for  France  to 
assume  an  attitude  of  neutrality.  The  task  of  the  govern- 
ment in  this  respect  is  made  easy  of  performance  by  the  fact 
that  the  manufacture  and  sale  of  the  most  offensive  forms  of 
contraband  of  war,  such  as  powder,  fire-arms,  ammunition, 
and  projectiles,  are  made  the  subject  of  state  regulation.  It  is, 
therefore,  not  difficult  for  the  government,  at  the  outbreak  of 
war,  to  impose  such  additional  restrictions  upon  the  manufact- 
ure and  sale  of  contraband  articles  as  will  effectually  prevent 
violations  of  its  neutrality.  The  absence  of  positive  law  on 
the  subject  enables  France  to  adapt  its  neutrality  regulations 
to  the  standard  of  international  law  at  any  particular  epoch — ■ 


436      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

an  advantage  which  is  shared  by  all  of  the  highly  centralized 
governments  on  the  continent  of  Europe.  The  law  and  prac- 
tice of  Belgium,  Brazil,  Italy,  Holland,  Russia,  Spain,  and 
Portugal  are  similar  to  those  of  France.  Austria  and  Prussia  , 
have  no  laws  upon  the  subject,  and  seem  to  need  none,  as 
ample  powers  to  prevent  violations  of  neutrality  are  vested 
in  the  respective  governments.  The  laws  of  Denmark  and 
Sweden  are  quite  elaborate,  resembling  in  many  respects  those 
of  England  and  the  United  States.' 

The  "  Droit  d'Angarie."  Although  this  right  has  been 
somew^hat  less  frequently  exercised  in  recent  times  than  was 
formerly  the  case,  it  is  still  recognized  at  international  law  as 
a  lawful  restraint  upon  neutral  commicrce.  In  its  exercise  it 
resembles,  in  some  respects,  the  right  of  embargo  which  has 
already  been  explained,^  and  authorizes  a  belligerent,  in  an 
emergency  of  war,  to  apply  neutral  property  to  a  hostile  use ; 
the  neutral  owner  being  compensated,  in  every  case,  for  the 
property  thus  involuntarily  appropriated  to  the  military  use  of  a 
belligerent.  The  most  frequent  form  of  appropriation,  in  for- 
mer times,  consisted  in  the  taking  of  neutral  merchant  ships, 
which  "were  compelled  to  transport  soldiers,  ammunition,  or 
other  instruments  of  war  ;  in  other  words,  to  become  parties 
against  their  will  to  carrying  on  direct  hostilities  against  a 
power  with  whom  they  were  at  peace."'  During  the  Franco- 
Prussian  War  the  right  was  exercised,  in  an  extreme  form,  by 
the  Prussian  Government,  which  caused  several  British  mer- 
chant vessels  to  be  seized  and  sunk  at  the  mouth  of  the  Seine, 
with  a  view  to  prevent  the  egress  of  certain  French  gunboats 
from  that  river.     This  act  gave  rise  to  a  demand  for  indemnity 

'Report  of  English    Neutrality  §  278;  Woolsey,  §    118,  note;  IV 

Laws  Commission  of  1870,  p.  40.  Haiitefeuille,    p.   439;    Lawrence's 

^  Page  266  ante.  Wheaton,  p.  51 1,  note  169  ;  I  Masse, 

Mil   Phillimore,   pp.  49-53;    I  P-  280;    Risley,    p.    139;   I  Guelle, 

Azuni,  Maritime   Law  of   Europe,  pp.  62,  63.     For  discussions  of  the 

pp.  238-242;  III  Calvo,  §  1277  ;  IV  derivation  of  the  term  and  the  for- 

Ibid.  §§  2242-2249;  Heffter,  §    150,  mer  extent  of  the  right,  see  II  Fer- 

note;    II    Ferguson,  §   251;   Law-  guson,  §  251,  note ;  Woolsey,  §  118, 

rence,    Int.    Law,    §    252 ;    Dana's  note. 
Wheaton,   §   293,  note  152;  Hall, 


NEUTRALITY  437 

on  the  part  of  the  British  Government,  which  was  promptly- 
acceded  to  by  Prussia.' 

Although  the  right,  as  formerly  exercised,  exhibits  a  ten- 
dency to  become  extinguished  by  non-user,  its  application  to 
international  telegraphs  and  telephones,  to  the  rolling-stock  of 
railways  and  other  neutral  property,  bids  fair  to  come  into  es- 
pecial prominence  in  the  wars  of  the  future.  Indeed,  the  rules 
agreed  to  by  the  International  Peace  Conference  at  The  Hague 
contain  provisions  regulating  the  use  of  railway  material,  tele- 
graphs, and  the  like,  by  belligerents  in  the  prosecution  of 
their  military  operations/ 


References.  For  the  old  view  of  neutrality  the  student  is  referred  to 
Vattel,  liv.  iii.  chap.  vii.  §§  103-111;  Azuni,  "Maritime  Law,"  vol.  ii. 
chaps,  i.-v.  For  the  views  now  generally  accepted,  see  Hall,  pt.  iv. 
chaps,  ii.-iv. ;  Boyd's  Wheaton,  §§  405-501;  II  Halleck,  chaps,  xxiv. 
xxviii. ;  Creasy,  pp.  570-683;  Lawrence,  "International  Law,"  §§  243- 
268;  IV  Calvo,  §§  2491-2707;  II  Lorimer,  pp.  121-129;  II  Twiss,  §§  208- 
240;  Walker,  "Science  of  International  Law,"  pp.  374-526;  II  Ortolan, 
pp.  77-83;  Manning,  bk.  v.  chaps,  i.-vi.  viii.-xii. ;  III  Phillimore,  pp. 
225-386;  Woolsey,  §§  163-192;  Bernard,  "The  Neutrality  of  England"; 
Nys,  "La  Guerre  Maritime,"  chaps,  i.  ii.  vi. ;  Glass,  "Marine  Interna- 
tional Law,"  pp.  573-603;  II  G.  F.  De  Martens,  §§  305-314,  323-326; 
Kliiber,  §§  279-287,  299-316;  Heffter,  pp.  269-286;  Kusserow,  "  Les 
Devoirs  d'un  Gouvernement  Neutre";  and  I  Hautefeuille,  pp.  195-407; 
vol.  ii.  pp.  1-69,  289-462;  vol.  iii.  pp.  214-276,  432-449.  For  a  discus- 
sion of  the  Alabama  Case  and  the  Geneva  Arbitration,  see  Bernard, 
"Neutrality  of  England";  Gushing,  "Treaty  of  Washington  " ;  "The 
Alabama  Question,"  by  Professor  Bluntschli,  vol.  ii.  "  Revue  de  Droit 
International,"  pp.  452-485  ;  see,  also,  vol.  i.  Ibid.  pp.  1 53,  449 ;  vol.  ii.  Ibid, 
p.  142  ;  vol.  iii.  Ibid.  p.  115  ;  vol.  iv.  Ibid.  p.  127;  vol.  vi.  Ibid.  pp.  453-581 ; 
vol.  vii.  Ibid,  pp,  70,  127;  "The  Geneva  Arbitration,"  vols,  i.-iv. ;  "Foreign 
Relations  of  the  United  States,"  1872  ;  IV  Calvo,  §§  2558-2591  ;  III  Philli- 
more, pp.  250-273;  Hall,§§  222-229;  Gessner,  "Sur  la  Reforme  du  Droit 
Maritime  de  la  Guerre,"  in  vol.  viii.  of  "  Revue  de  Droit  International"; 


'  Hall,  §278;  III  Phillimore,  pp.      and    54  of  the  Rules   of  War  on 

49-53.  Land  adopted  bythe  International 

^  See,  in  Appendix    E,  pars.    53      Peace  Conference  on  July  29,  1899. 


438  THE  ELEMENTS   OF   INTERNATIONAL  LAW 

and  Lorimer,  "  The  Obligations  of  Neutrals."  For  discussions  respecting 
the  neutrality  of  telegraphs,  telephones,  and  ship-canals,  see  the  articles 
by  Sir  Travers  Twiss,  in  vol.  vii.  "  Revue  de  Droit  International,"  pp. 
682-694;  vol.  xiv.  Ibid.  pp.  572-583;  by  M.  T.  M.  C.  Asser,  in  vol.  xx. 
"  Revue  de  Droit  International,"  pp.  529-558  ;  by  Professor  L.  von  Stein, 
vol.  xvii.  Ibid.  p.  332;  vol.  xix.  Ibid.  pp.  118.  164;  by  M.  G.  Moynier,  vol. 
XX.  Ibid.  pp.  312;  by  Dr.  J.  C.  Buzzati,  vol.  xx.  Ibid.  pp.  383.  606;  see, 
also,  vol.  viii.  of  the  "  Annuaire  de  I'Institut  de  Droit  International," 

p.  179-      . 


CHAPTER  XIII 

CONTRABAND    OF    WAR 

Restrictions  upon  Neutral  Commerce  in  Time  of  War. 

The  law  of  nations  permits  a  belligerent  to  exercise  a  pecul- 
iar jurisdiction  over  neutral  commerce  in  time  of  war.  This 
jurisdiction  is  so  extensive  in  some  respects  as  to  amount  to 
an  absolute  prohibition  of  certain  kinds  of  trade ;  it  is  limited, 
indeed,  in  its  extent  and  operation,  only  by  the  zeal  and  en- 
ergy which  belligerents  display  in  its  exercise.  This  jurisdic- 
tion extends — 

{a.)  To  the  prohibition  of  neutral  trade  with  belligerents 
in  certain  articles  susceptible  of  military  use.  The  articles 
so  forbidden  to  be  transported  are  called  contraband  of 
war. 

{b.)  To  the  prohibition  of  all  trade  with  certain  ports  or 
places,  which  are  closed  to  such  trade  by  an  exercise  of  military 
force  known  as  an  investment,  siege,  or  blockade. 

{c.)  To  make  these  prohibitions  effective,  a  belligerent  is 
given  the  right  to  stop  and  search  all  neutral  merchant  ves- 
sels on  the  high  seas,  in  his  own  territorial  waters,  or  those  of 
the  enemy,  for  the  purpose  of  determining  the  nationality  of 
ships  and  goods,  and  of  ascertaining  whether  they  contain 
enemies'  goods,  contraband  of  war,  or  are  destined  to  a  port 
of  the  enemy  against  which  a  blockade  has  been  established. 
This  is  called  the  belligerent  right  of  search. 

When  and  by  Whom  Exercised:  Penalty.  These  rights  per- 
tain to  belligerent  states  alone.  They  come  into  existence  at 
the  outbreak  of  war,  and  are  terminated  by  the  treaty  of  peace. 
None  of  them  exist,  or  may  lawfully  be  exercised,  in  time  of 
peace  ;  indeed,  the  enforcement  of  any  one  of  them,  during 


440  THE  ELEMENTS  OF   INTERNATIONAL  LAW 

peace,  would  be  regarded  as  a  just  cause  for  war  by  the  state 
whose  sovereign  rights  were  injured  by  its  exercise.' 

International  law  declares  the  acts  of  transporting  contra- 
band and  breach  of  blockade  to  be  unlawful,  and  denounces 
the  penalty  of  confiscation  upon  the  goods,  and,  in  some  cases, 
upon  the  ships  engaged  in  such  illicit  trade.  These  rules  of 
international  law  are  enforced  by  the  belligerent  who  suffers 
by  their  violation,  and  the  authorized  penalties  are  imposed 
by  his  prize-courts.^ 

Application  to  Individuals.  The  rules  of  international  law 
on  the  subject  of  contraband  trade  and  breach  of  blockade  are 
directed  chiefly  against  the  acts  of  individuals.  If  a  neutral 
state,  in  its  corporate  capacity,  were  to  engage  in  contraband 
trade,  it  would  be  regarded  as  an  act  of  hostility  by  the  in- 
jured state,  and  would  result  in  a  declaration  of  war.  An  in- 
dividual engaging  in  such  trade  does  so  at  the  risk  of  losing 
the  articles  of  merchandise  which  constitute  his  commercial 
venture.  He  does  not  involve  his  government,  however,  in 
the  breach  of  neutrality  of  which  he  is  himself  guilty.  If, 
however,  the  municipal  law  of  his  own  state  forbids  its  sub- 
jects to  take  part  in  contraband  trade,  he  may  be  punished  by 
that  government  for  a  violation  of  its  laws. 

Origifi  of  the  Practice.  The  principle  of  forbidding,  as  a 
matter  of  state  policy,  the  manufacture  or  sale  of  certain  ar- 
ticles, or  even  the  holding  of  them  in  legal  possession,  has 
been  recognized  by  the  municipal  law  of  all  states  since  the 
beginning  of  history.     The  origin  of  the  rule  of  international 


'V  Calvo,  §  2708;  II   Twiss,  §  remaining  cargo,  if  they  do  not  be- 

121;  Bluntschii,  §  765;  Kliiber,  §§  long  to  the  owner  of  the  contraband 

289,  290;  Hall,  §§  232-235  ;  Vattel,  goods,  are  not  subject  to  the  same 

liv.  iii.  chap.  vii.  §§  111-118.  penalty.    The  penalty  is  applied.to 

'^According  to  the  modern  law  the  latter  only  when  there  has  been 

of  nations — for  there  has  been  some  some  actual  co-operation,  on  their 

relaxation    in    practice   from    the  part,  in  a  meditated  fraud  upon  the 

strictness  of  the  ancient  rules— the  belligerents,   by   covering   up   the 

carriage   of  contraband    goods  to  fraud  under  false  papers,  and  with 

the  enemy  subjects  them,  if  capt-  a   false   destination. — Carrington 

ured  m  delicto,  to   the  penalty  of  vs.   Merchants,  Ins.  Co.,  8   Peters, 

confiscation ;  but  the  vessel  and  the  495. 


CONTRABAND   OF   WAR  44 1 

law  on  the  subject  of  contraband  of  war,  however,  is  relatively 
recent,  and,  in  its  present  form,  does  not  antedate  the  seven- 
teenth century.' 

The  commercial  cities  of  the  Mediterranean  had  but  little 
interest  in  asserting  such  a  right  against  each  other,  since  each 
of  them  claimed  exclusive  control  over  what  it  regarded  as  its 
own  field  of  commerce,  and  was  not  disposed  to  surrender  any 
portion  of  it,  even  in  time  of  war.  Moreover,  a  large  part  of 
their  trade  with  the  East,  especially  that  of  Venice  and  Genoa, 
was  in  articles  which  would  now  be  regarded  as  contraband  of 
war.  It  is,  therefore,  very  unlikely  that  they  would  have  ad- 
vocated, or  even  favorably  considered,  a  principle  the  applica- 
tion of  which  would  have  seriously  injured,  if  it  did  not  entire- 
ly destroy,  a  most  lucrative  branch  of  their  commerce.  The 
adoption  of  the  modern  rule  was  thus  deferred  until  the  north- 
ern and  western  European  powers  had  begun  to  acquire  mari- 
time importance,  and  to  carry  on  hostile  undertakings  against 
each  other  at  sea. 

So  soon  as  interstate  commerce  became  general  it  was  seen 
that  certain  kinds  of  trade,  if  carried  on  during  the  existence 
of  a  war,  were  calculated  to  injure  belligerents  to  such  an  ex- 
tent as  to  make  it  necessary  for  them  to  cause,  at  least,  their 
temporary  discontinuance  ;  and  to  justify  them,  in  the  exercise 
of  the  right  of  self-defence,  in  resorting  to  such  measures  of 
precaution  as  would  neutralize  their  injurious  effects.  It  was 
not  difficult  to  find  a  remedy,  when  the  trade  complained  of 
was  carried  on  by  a  state  in  its  corporate  capacity,  since  it  con- 
stituted a  violation  of  neutrality,  and  was  punishable  as  such. 

'  So  early  as  the  thirteenth  cen-  ity  to  discuss  the  subject.  Although 

tury  it  had  become  the  usage  for  the  transport  of  certain  articles  is 

powerful  sovereigns  to  forbid  all  forbidden  in  treaties  of  an  earlier 

trade  with  their  enemies  in  time  of  date,  the  Treaty  of  the  Pyrenees, 

war.     Such  an  instance  occurs  in  a  in  1659,  and  that  of  Utrecht,  of  171 3, 

treaty  of   Edward  III.  of  England  seem  to  have  been  most  effective 

withtheFlemings,  in  1370.    Francis  in  determining  the  present  rule  on 

I.,  in    1543,  forbade  his  allies  and  the  subject  of  contraband  of  war. 

confederates  to  deliver  munitions  See,  also.  V  Calvo,  §§  2708-2715; 

of  war  to  his  enemy.     Grotius  was  II   Twiss,  §   121;    Heffter,  §   158; 

the  first  writer  of  standard  author-  Hall,  §§  236-240. 


442      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Where  the  objectionable  commercial  undertakings  originated 
with  individuals,  however,  it  was  less  easy  to  provide  a  remedy. 
On  land  it  was  soon  found  to  be  impossible  to  prevent  contra- 
band trade,  unless  the  belligerent  himself  controlled  the  neu- 
tral frontier,  or  the  neutral  state  was  willing  to  resort  to  such 
elaborate  police  measures  as  would  effectively  prevent  the  con- 
veyance of  contraband  articles  across  its  boundaries.  Its  at- 
tempted regulation  on  land,  therefore,  was  soon  abandoned. 
At  sea,  however,  the  matter  could  be  more  easily  regulated. 
The  ships  of  neutrals  could  be  searched,  and,  if  contraband 
articles  were  found  on  board,  a  suitable  penalty  could  be  in- 
flicted ;  or  their  introduction  into  the  enemy's  country  could 
be  prevented  by  maintaining  opposite  his  coasts  a  naval  force 
of  sufficient  strength  to  make  it  dif^cult,  or  impossible,  for 
neutral  ships  to  obtain  access  to  his  harbors. 

When  such  regulation  was  first  undertaken,  the  attempt  was 
made  to  forbid  all  traffic  with  an  enemy.  This  claim,  however, 
was  soon  abandoned,  and  the  conveyance  of  contraband  was 
regarded  as  a  criminal  act,  involving  \.\iQ  persons  engaged  in  it, 
as  well  as  their  property,  in  the  penalties  imposed.  In  this 
form  the  rule  was  recognized  by  Grotius.  The  criminal  feat- 
ure was  soon  abandoned,  so  far  as  it  affected  the  personal 
rights  of  those  concerned,  and  the  penalties  were  restricted  to 
the  contraband  goods  alone. 

What  Constitutes  Contraband.  In  determining  whether 
a  particular  article  is  or  is  not  contraband  of  war,  three  ele- 
ments must  be  considered  in  reaching  a  decision  as  to  its  Ha- 
bility  to  condemnation  :  {a)  the  place  of  its  capture ;  {h)  its 
destination ;  {c)  the  character  of  the  article  and  the  use  to 
which  it  may  be  applied.  The  first  two  are  not  difficult  to  de- 
termine. The  article  must  be  captured  on  the  high  seas,  or  in 
the  territorial  waters  of  either  belligerent ;  and  it  must  have  a 
hostile  destination — that  is,  it  must  be  destined  to  the  military 
use  of  a  belligerent.'     As  to  the  article  itself,  it  is  difficult  to 

'  "Goods  of  every  description  may  discharge  at  a  neutral  port,  and  to 
be  conveyed  to  neutral  ports  from  be  brought  into  the  common  stock 
neutral  ports,  if  intended  for  actual      of  merchandise  of  such  port;  but 


CONTRABAND   OF   WAR  443 

lay  down  a  rule  the  application  of  which  shall,  in  every  case, 
determine  whether  a  particular  article  is,  or  is  not,  contraband 
of  war.  The  attempt  has  frequently  been  made,  but  none  of 
the  rules  suggested  has,  as  yet,  received  that  general  sanction 
which  is  necessary  to  give  it  standing  as  a  rule  of  international 
law.  "  Grotius,  in  considering  this  subject,  makes  a  distinction 
between  those  things  which  are  useful  only  for  purposes  of  war, 
those  which  are  not  so,  and  those  which  are  susceptible  of  in- 
discriminate use  in  war  and  peace.  The  first  he  agrees  with 
all  other  text  writers  in  prohibiting  neutrals  from  carrying  to 
the  enemy,  as  well  as  in  permitting  the  second  to  be  so  carried 
the  third  class — such  as  money,  provisions,  ships'  and  naval* 
stores  —  he  sometimes  prohibits  and  at  other  times  permits, 
according  to  the  existing  circumstances  of  the  war." ' 

The  question  as  to  what  is  and  what  is  not  contraband  can- 
not, as  yet,  be  answered  with  precision.  No  complete  list  of 
articles  which  are  to  be  deemed  contraband  under  all  circum- 
stances has  been  drawn  up,  nor  does  it  seem  likely  that  it  ever 
will  be.  That  which  is  contraband  under  certain  circumstances 
may  not  be  so  under  others.  The  main  point,  in  case  of  an 
article  of  doubtful  use,  is,  whether  it  was  intended  for,  or 
would  probably  be  applied  to,  military  purposes.  The  release 
or  condemnation  of  the  goods  is,  in  every  case,  determined  by 

voyages  from  neutral  ports  intended  of  fraud  or  bad  faith  on  the  part  of 
for  belligerent  ports  are  not  pro-  the  owners,  or  of  the  master  with 
tected  in  respect  to  seizure,  either  their  sanction." — Ibid, 
of  ship  or  cargo,  by  an  intention,  '  Boyd's  Wheaton,  pp.  558,  559, 
real  or  pretended,  to  touch  at  in-  citing  Grotius,  De  Jure  Belli  et 
termediate  neutral  ports."—  The  Pac.  lib.  iii.  cap.  i.  §  v.  i,  2,  3. 
Bermuda,  3  Wallace,  514.  "Neu-  The  views  of  Bynkershoek  and 
trals  may  convey  to  belligerent  Vattel  agree  in  substance  with  those 
ports  not  under  blockade  what-  of  Grotius.  The  former,  however, 
ever  belligerents  may  desire  to  shows  an  inclination  to  extend 
take,  except  contraband  of  war,  Grotius's  rules  in  the  interest  of 
which  is  always  subject  to  seizure  belligerents,  while  the  latter  con- 
when  being  conveyed  to  a  belliger-  tends  for  a  rule  somewhat  more 
ent  destination,  whether  the  voyage  favorable  to  neutrals.  See  Vattel, 
be  direct  or  indirect  ;  such  seizure,  bk.  iii.  chap.  vii.  §§  112,  113;  Byn- 
however,  is  restricted  to  actual  con-  kershoek.  Quest.  Jur.  Pub.  lib.  i. 
traband,  and  does  not  extend  to  the  cap.  10. 
ship  or  other  cargo,  except  in  cases 


444  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

the  decision  of  this  question.  Contraband  of  war  may  be  de- 
fined, however,  in  general  terms,  as  any  article  primarily  in- 
tended for  the  military  or  naval  use  of  a  belligerent  and  con- 
stituting, wholly  or  in  part,  the  cargo  of  a  neutral  merchant 
vessel  found  on  the  high  seas  or  in  the  territorial  waters  of  a 
belligerent  and  having  a  hostile  destination/ 

Field' s  Rule.  Mr.  Field,  in  his  proposed  International  Code, 
holds  that  "  private  property  of  any  person  whomsoever,  and 
public  property  of  a  neutral  nation,  are  contraband  of  war 
when  consisting  of  articles  manufactured  for,  and  primarily 
used  for,  military  purposes  in  time  of  war,  and  actually  des- 
tined for  the  use  of  the  hostile  nation  in  war,  but  not  other- 
wise." ^ 

Question  Determined  by  Prise  -  Courts.  In  England  and 
America  the  court  before  which  the  goods  are  brought  will 
inquire  into  all  the  circumstances  of  the  case ;  such  as  the  des- 
tination of  the  ship,  the  purpose  to  which  the  goods  seem  in- 
tended to  be  applied,  the  character  of  the  war,  and  so  on,  and 
will  condemn  or  release  them  upon  the  evidence.  If,  however, 
there  are  any  treaty  stipulations  on  the  subject,  or  if  the  state 
before  whose  court  the  goods  are  brought  has  issued  any  def- 
inite list  of  contraband  goods,  the  decision  will,  of  course,  be 
regulated  accordingly.  "  The  liability  to  capture,"  says  Hal- 
leck,  "  can  only  be  determined  by  the  rules  of  international 
law,  as  interpreted  and  applied  by  the  tribunals  of  the  bellig- 
erent state,  to  the  operations  of  whose  cruisers  the  neutral 
merchant  is  exposed."  ^ 

Opinion  of  the  Supreme  Court  of  the  United  States.  The 
most  recent  authoritative  opinion  upon  the  subject,  and  the 
one  which  more  nearly  expresses  the  existing  rule  than  any 
other,  is  that  laid  down  by  the  Supreme  Court  of  the  United 

*V  Calvo,   §  2708;    II  Twiss,  §  on  pape  576  of  the   former  work, 

121;  II  Halleck,  pp.  244,  245  ;  Hall,  the   lists  of   contraband    as  deter- 

§§  236-246;  Dana's  Wlieaton.p. 629,  mined  by  the  English  prize-courts. 

note  226;   II  Ortolan,  pp.  182-200.  Dana's  Wheaton,  §  501,  note   226; 

"  Field,  Int.  Code,  §  859.  V  Calvo,  §§  2708  -  2738  ;   Holmes's 

'  Boyd's  Wheaton,  pp.  575,  576;  Kent,  pp.  136-143. 
Halleck,  chap,  xxxii.  §  19.  See,  also, 


CONTRABAND   OF    WAR 


44? 


States  in  the  case  of  the  Peterhoff.  The  decision  of  the  court 
was  that  "  the  classification  of  goods  as  contraband  or  not 
contraband  has  much  perplexed  text  writers  and  jurists.  A 
strictly  accurate  and  satisfactory  classification  is,  perhaps,  im- 
practicable ;  but  that  which  is  best  supported  by  American 
and  English  decisions  may  be  said  to  divide  all  merchandise 
into  three  classes:  (i)  Articles  manufactured  and  primarily  or 
ordinarily  used  for  military  purposes  in  time  of  war.  (2)  Arti- 
cles which  may  be,  and  are,  used  for  purposes  of  war  or  peace, 
according  to  circumstances.  (3)  Articles  exclusively  used  for 
peaceful  purposes.  Merchandise  of  the  first  class,  destined  to 
a  belligerent  country  or  places  occupied  by  the  army  or  navy 
of  a  belligerent,  is  always  contraband  ;  merchandise  of  the  sec- 
ond class  is  contraband  only  when  destined  to  the  military 
or  naval  use  of  a  belligerent ;  while  merchandise  of  the  third 
class  is  not  contraband  at  all,  though  liable  to  seizure  and 
condemnation  for  violation  of  blockade  or  siege."  ' 

To  these  may  be  added  the  rule  that  no  articles  of  merchan- 
dise are  contraband  of  war  so  long  as  they  remain  in  neutral 
territory,  or  are  found  on  the  high  seas  with  a  bona  fide  neu- 
tral destination.  They  acquire  the  character  of  contraband 
only  when  they  are  found,  without  the  territorial  vvaters  of  a 
neutral  state,  on  board  a  ship  which  is  destined  to  a  hostile 
port. 

Application  of  tJie  Rules.  In  the  application  of  these  rules, 
the  first  and  third  give  rise  to  but  little  difficulty.  Such  dis- 
cussion as  has  been  had,  with  respect  to  the  liability  of  mer- 
chandise to  capture  as  contraband  of  war,  has  had  to  do  chiefly 
with  the  second  class,  with  reference  to  which  there  is  a  wide 
difference  of  opinion.^     This  is  observable,  not   only  in   the 


'  The  Peterhoff,  5  Wallace,  58 
III  Phillimore,  §§  236,  243-253 
Vattel,  liv.  iii.  chap.  vii.  §  112;  II 
Twiss,  §§  121-148;  II  Ortolan,  pp, 
182-197  ;  Lawrence,  Int.  Law.  §  278 
Kliiber,  §  288;  Manninij,  pp.  352- 
377;  II  Parsons,  Maritime  Law,  pp 
93,  94;  Upton,  Maritime  Law,  pp 


327-334;  Heffter,  §  160;  Dana's 
Wheaton,  §  501,  note  226;  Law- 
rence's Wheaton,  p.  796,  note  229; 
Bluntschli,  §765;  III  Dig.  Int.  Law, 

§§  368-374. 

^  "The  classification  of  goods  as 
contraband  or  not  contraband, 
which  is  best  supported  by  Amer-. 


446  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

policy  of  states,  but  in  the  views  of  text  writers.  Those  states 
which,  at  different  periods,  have  enjoyed  great  maritime  power, 
both  in  a  commercial  and  a  military  sense,  have  usually  advo- 
cated an  extension  of  the  list  of  contraband  ;  while,  on  the 
other  hand,  those  which  have  never  attained  to  any  consider- 
able degree  of  maritime  importance  have  opposed  such  an 
extension,  and  have  contended  for  the  greatest  freedom  of 
neutral  trade.  Of  the  former  class  England  is  the  most  con- 
spicuous representative ;  next  in  order  follow  France  and  the 
United  States.  Holland,  when  an  important  maritime  power, 
entertained  a  different  view  from  that  advocated  by  her  when 
her  maritime  importance  had  been  largely  diminished. 

Again,  articles  which  are  in  dispute  are  differently  regarded 
at  different  times,  and  under  different  circumstances  of  desti- 
nation, as  determined  by  the  states  which  are  parties  to  a  par- 
ticular war.  So,  too,  articles  which  are  undeniably  contraband 
at  a  particular  epoch  gradually  lose  that  character;  on  the 
other  hand,  articles  formerly  innocent,  with  the  lapse  of  time 
and  the  march  of  improvement,  acquire  the  character  of  con- 
traband.' Parts  of  marine  steam  machinery,  previous  to  1830, 
would  have  escaped  capture.  Plates  of  iron  or  steel,  of  suit- 
able size  for  use  as  armor,  would  have  enjoyed  a  similar  im- 
munity.    At  present  both  are  everywhere  regarded  as  contra- 

ican  and  English  decisions,  divides  third  class  is  not  contraband  at  all, 

all  merchandise  into  three  classes:  though  liable  to  seizure  and  con- 

(i)  Articles  manufactured  and  pri-  demnation  for  violation  of  block- 

marily  or  ordinarily  used  for  mili-  ade    or  siege."  —  The  Peterhoff,  5 

tary  purposes  in  time  of  war.     (2)  Wallace,  58. 

Articles  which  may  be  and  are  »"  Money,  silver-plate, and  bullion, 
used  for  purposes  of  war  or  peace,  when  destined  for  hostile  use,  or 
according  to  circumstances.  (3)  for  the  purchase  of  hostile  sup- 
Articles  exclusively  used  for  peace-  plies,  are  contraband  of  war.  In 
ful  purposes.  Merchandise  of  the  this  case  the  determination  of  the 
first  class,  destined  to  a  belligerent  question  whether  such  articles, 
country  or  places  occupied  by  the  part  of  the  outward-bound  cargo 
army  or  navy  of  a  belligerent,  is  of  the  vessel,  were  contraband  de- 
always  contraband;  merchandise  volved  upon  the  commanding  gen- 
of  the  second  class  is  contraband  eral."— United  States  vs.  Diekel- 
only  when  actually  destined  to  the  man,  92  U.  S.  520;  III  Dig.  Int. 
military  or  naval  use  of  a  bellig-  Law,  §§  368-373. 
erent;   while  merchandise  of  the 


CONTRABAND  OF  WAR 


447 


band  of  war.  However  difficult  it  may  be  to  prepare  a  list  of 
contraband  articles  at  any  particular  epoch,  it  is  certainly  much 
less  difficult  for  a  court  to  determine  whether  a  certain  article 
of  captured  merchandise  is,  or  is  not,  contraband.  In  reaching 
such  a  determination  the  court  takes  into  account  the  circum- 
stances of  capture,  the  necessities  of  the  state  to  whose  use  it 
was  destined,  its  condition,  origin,  and  ownership.  With  these 
data  the  court  is  usually  able  to  determine,  with  great  accuracy, 
whether  a  particular  article  is,  or  is  not,  contraband  of  war.' 

Destination  Important:  How  Determined.  From  what 
has  been  said  in  respect  to  the  right  of  belligerents  to  impose 
restrictions  on  neutral  commerce,  it  will  be  seen  that,  in  deter- 
mining liability  to  capture,  the  destination  of  the  vessel  and 


'  The  action  of  the  court  in  the 
case  of  the  Peterhoff  may  be  cited 
as  an  example.  A  portion  of  the 
cargo  of  the  ship  consisted  of 
stoutly  made  shoes  and  cavalry 
boots.  The  ostensible  destination 
of  the  cargo  was  Matamoras,  a 
Mexican  port.  These  articles  were 
notoriously  not  worn  or  used,  in 
Mexico,  by  any  portion  of  the 
population ;  they  were  worn  in 
the  United  States,  and  were  espe- 
cially needed  for  the  equipment 
of  the  Confederate  armies.  An- 
other portion  of  the  cargo  was 
composed  of  heavy  woollen  blank- 
ets, not  adapted  to  the  Mexican 
market,  and  of  a  kind  entirely  dif- 
ferent, in  pattern  and  weight,  from 
those  usually  worn  in  Mexico.  On 
the  other  hand,  they  closely  resem- 
bled those  made  and  sold,  for  mili- 
tary use,  in  the  United  States,  and 
were  adapted  to  the  colder  climate 
of  that  country.  The  court,  in  both 
instances,  properly  inferred  that 
the  goods  were  destined  to  the 
military  service  of  the  Confederacy. 
In  the  cargo  of  the  Springbok  a 
large  quantity  of  gray  cloth  and 
metal  buttons  was  found.  The 
cloth  was  a  heavy  woollen  ma- 
terial, altogether  unsuited  to  the 


Nassau  market,  or  for  use  in  the 
manufacture  of  clothing  in  that 
climate.  On  the  other  hand,  it 
was  of  the  same  color  and  quality 
as  that  officially  adopted  for  the 
use  of  the  Confederate  armies. 
Some  of  the  buttons  bore  as  a  de- 
vice the  letter  C  ;  others  the  letter 
A;  others  the  letter  I;  still  others 
the  letters  CSN.  These  buttons 
were  not  usual  articles  of  commerce 
in  Nassau,  the  ostensible  destina- 
tion of  the  ship.  The  Confederate 
army  regulations  prescribed  that 
such  buttons  should  be  worn  by, 
and  should  designate  the  uniforms 
of,  its  cavalry,  artillery,  and  in- 
fantry. Its  naval  regulations  pre- 
scribed the  use  of  buttons  bearing 
the  letters  CSN.  Goods  bearing 
the  name  of  the  same  makers,  and 
in  some  cases  of  the  same  shippers, 
had  been  found  and  condemned  in 
previous  cargoes  of  contraband. 
These  facts  created  a  presump- 
tion against  the  articles,  which 
the  claimants  did  not  attempt  to 
rebut  by  evidence  of  a  legitimate 
neutral  destination.  —  The  Peter- 
hoff, 5  Wallace,  58  ;  the  Springbok, 
Ibid.  I.  See,  also,  Dana's  Wheaton, 
p.  632,  note. 


44B  THE   ELEMENTS  OF  INTERNATIONAL   LAW 

the  character  of  the  cargo  are  of  the  highest  importance.  As 
the  trade  of  neutrals  with  each  other  undergoes  no  restriction 
in  time  of  war,  a  neutral  merchant  vessel  found  on  the  high  seas 
with  a  bona  fide  neutral  destination  is  exempt  from  seizure  or 
detention  ;  it  is  only  when  the  ship's  papers  indicate  an  imme- 
diate or  ultimate  hostile  destination  that  she  becomes  liable 
to  capture  and  condemnation.'  The  port  from  which  the  ship 
sails  is  called  her  port  of  origin ;  that  to  which  she  is  finally 
destined  at  the  completion  of  her  voyage  is  called  her  port 
of  ultimate  destination;  ports  at  which  she  touches  between 
these  terminal  points  are  called  ports  of  call  or  of  immediate 
destination.  The  destination  of  a  vessel  is  determined  from 
its  papers.  If  the  ultimate  destination  and  all  intermediate 
ports  of  call  are  neutral,  the  ship  is  said  to  have  a  neutral  des- 
tination. If  the  port  of  final  destination  or  any  intermediate 
port  of  call  be  hostile,  then  her  destination  is  hostile.  If  the 
purpose  of  the  master  to  visit  an  intermediate  hostile  port  be 
contingent  only,  and  if  he  has  abandoned  his  purpose  in  the 
course  of  the  voyage,  the  burden  of  proof  is  with  him  to 
establish  such  abandonment  of  the  hostile  destination.  In 
this  case  he  will  have  to  overthrow  the  presumption,  as  to 
destination,  which  is  created  by  the  ship's  papers." 


'  "  No  trade  honestly  carried  on  real  or  pretended,  to  touch  at  in- 
between  neutral  ports,  whether  of  termediate  neutral  ports."  —  Ibid, 
the  same  or  of  different  nations.  The  rnianiiel,  2  Rob.  198. 
can  be  lawfully  interrupted  by  bel-  ^  "  Neutrals  may  convey  to  bel- 
ligerents, but  good  faith  must  pre-  ligerent  ports  not  under  blockade 
side  over  such  commerce;  enemy  whatever  belligerents  may  desire 
commerce  under  neutral  disguises  to  take,  except  contraband  of  war, 
has  no  claim  to  neutral  immunity."  which  is  always  subject  to  seizure 
—  The  Bermuda,  3  Wallace,  514.  when  being  conveyed  to  a  bellig- 
"  Goods  of  every  description  may  erent  destination,  whether  the  voy- 
be  conveyed  to  neutral  ports  from  age  be  direct  or  indirect;  such 
neutral  ports,  if  intended  for  actual  seizure,  however,  is  restricted  to 
discharge  at  a  neutral  port,  and  to  actual  contraband,  and  does  not 
be  brought  into  the  common  stock  extend  to  the  ship  or  other  cargo, 
of  merchandise  of  such  port;  but  except  in  cases  of  fraud  or  bad  faith 
voyages  from  neutral  ports  intend-  on  the  part  of  the  owners,  or  of  the 
ed  for  belligerent  ports  are  not  pro-  master  with  their  sanction.  Ves- 
tected  in  respect  to  seizure,  either  sels  conveying  contraband  cargo  to 
of  ship  or  cargo,  by  an  intention,  belligerent  ports  not  under  block- 


CONTRABAND   OF   WAR 


4^9 


The  destination  of  the  goods  is  usually,  but  not  invariably, 
determined  from  that  of  the  ship.  If  the  destination  of  the 
ship  be  neutral,  that  of  the  goods  is  neutral ;  if  it  be  hostile, 
that  of  the  goods  is  hostile.  Until  the  American  Civil  War 
the  presumption  by  which  the  destination  of  the  goods  was 
deduced  from  that  of  the  ship  was  generally  regarded  as  con- 
clusive. During  the  course  of  that  war,  however,  the  Supreme 
Court  of  the  United  States  rendered  several  decisions,  the 
effect  of  which  was  to  extend  considerably  the  rights  of  bel- 
ligerents at  the  expense  of  those  of  neutrals.  As  the  new  rule 
is  likely  to  receive  considerable  support  in  future  wars,  it  is 
important  to  understand  its  relation  to  the  old  rule  of  inter- 
national law  upon  the  same  subject.  The  rule  laid  down  by 
the  court  was  that  the  destination  of  the  goods,  rather  than 
that  of  the  ship,  was  to  be  inquired  into  by  the  court,  in 
determining  the  liability  to  capture.  If  the  result  of  such 
inquiry  showed  that  the  goods  were  destined  to  the  military 
use  of  a  belligerent,  they  were  held  liable  to  condemnation. 


ade,  undercircumstancesof  fraudor 
bad  faith,  are  liable  to  seizure  and 
condemnation  from  the  commence- 
ment to  the  end  of  the  voyage." 
— The  Bermuda,  3  Wallace,  514. 
"  The  trade  of  neutrals  with  bellig- 
erents in  articles  not  contraband 
is  absolutely  free  unless  interrupt- 
ed by  blockade.  The  conveyance 
by  neutrals  to  belligerents  of  con- 
traband articles  is  always  unlawful, 
and  such  articles  may  always  be 
seized  during  transit  by  sea." — The 
Peterhoff,  5  Wallace,  28.  "  Vessels 
conveying  contraband  cargo  to  bel- 
ligerent ports  not  under  blockade, 
under  circumstance?  of  fraud  or 
bad  faith,  or  cargo  of  any  descrip- 
tion to  belligerent  ports  under 
blockade,  are  liable  to  seizure  and 
condemnation  from  the  commence- 
ment to  the  end  of  the  voyage." 
— 'Wx^  Bermuda,  3  Wallace,  514.  "A 
Voyage  from  a  neutral  port  to  a  bel- 
ligerent port  is  one  and  the  same 

2S 


voyage,  whether  the  destination  be 
ulterior  or  direct,  and  whether  with 
or  without  the  interposition  of  one 
or  more  intermediate  ports;  and 
whether  it  be  performed  by  one 
vessel  or  several  employed  in  the 
same  transaction  and  in  the  ac- 
complishment of  the  same  pur- 
pose."— Ibid.  "  The  trade  of  neu- 
trals with  belligerents  in  articles 
not  contraband  is  absolutely  free, 
unless  interrupted  by  blockade  ;  the 
conveyance  by  neutrals  to  belliger- 
ents of  contraband  articles  is  al- 
ways unlawful,  and  such  articles 
may  always  be  seized  during  transit 
by  sea." — The  Peterhoff,  5  Wallace, 
28.  See,  also,  the  Jonge  Piete-r, 
4  Robinson,  Adm.  Rep.  p.  79 ;  the 
Frewidschaft,  Ibid.  p.  96  ;  t\\Q/ie?tg- 
fraii  Charlotta,  i  Acton,  Adm.  Rep. 
p.  171  ;  the  Maria,  5  Robinson,  365  ; 
the  Polly,  2  Ibid.  361  ;  the  Imanuel, 
Ibid.  197. 


450      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

even  though  they  were  ostensibly  destined  to  a  neutral  port. 
The  application  of  the  rule  is  illustrated  by  the  cases  of  the 
Springbok  and  Peterhoff. 

Case  of  the  "  Springbok!''  The  Springbok  was  a  neutral  ship 
of  English  ownership,  which  sailed  from  London  in  Decem- 
ber, 1862,  having  on  board  a  cargo  made  up  in  great  part  of 
contraband  of  war.  The  destination  of  the  vessel,  as  indi- 
cated by  her  custom-house  certificate,  certificate  of  clearance, 
and  manifest  of  cargo,  was  Nassau,  N.  P.,  a  British,  and  there- 
fore neutral,  port.  On  February  3,  1863,  she  was  captured 
by  a  public  armed  vessel  of  the  United  States,  on  the  high 
seas,  about  one  hundred  and  fifty  miles  east  of  her  port  of 
destination.  She  was  conveyed  to  New  York  as  a  prize,  and 
ship  and  cargo  were  there  condemned  by  the  United  States 
District  Court,  a  tribunal  having  original  jurisdiction  in  the 
case.  An  appeal  was  taken  to  the  Supreme  Court,  where  the 
decree  was  reversed  as  to  the  ship,  but  affirmed  as  to  the 
cargo.  The  decision  of  the  court  with  regard  to  the  ship  was 
that,  when  "  the  papers  of  a  vessel  sailing  under  a  charter  party 
are  all  genuine  and  regular,  and  show  a  voyage  between  ports 
neutral  within  the  meaning  of  international  law,  and  when  the 
aspects  of  the  case  generally  are,  as  respects  the  vessel,  other- 
wise fair,  the  vessel  will  not  be  condemned  because  the  neu- 
tral port  to  which  it  is  sailing  has  been  constantly  and  noto- 
riously used  as  a  port  of  call  and  transshipment  by  persons 
engaged  in  the  systematic  violation  of  blockade,  and  in  the 
conveyance  of  contraband  of  war,  and  was  meant  by  the  own- 
ers of  the  cargo  carried  on  this  ship  to  be  so  used  in  regard 
to  it." '  The  Springbok  was  held  to  come  within  the  rule. 
"  Her  papers  were  regular,  and  they  all  showed  that  the  voy- 
age in  which  she  was  captured  was  from  London  to  Nassau, 
both  neutral  ports  within  the  definition  of  neutrality  furnish- 
ed by  international  law.  The  papers,  too,  were  all  genuine, 
and  there  was  no  concealment  of  any  of  them,  and  no  spolia- 
tion.    Her  owners  were  neutral,  and  do  not  appear  to  have 

'  The  Springbok,  5  Wallace,  i. 


CONTRABAND   OF   WAR 


451 


had  any  interest  in  the  cargo ;  and  there  is  no  sufficient  proof 
that  they  had  any  knowledge  of  its  alleged  unlawful  destina- 
tion.'" 

The  case  of  the  cargo  was  quite  different.  The  cargo  of  the 
ship  consisted  of  over  two  thousand  packages.  Of  these  the 
bills  of  lading  disclosed  the  contents  of  less  than  one-third, 
and  concealed  the  contents  of  over  two-thirds,  of  the  entire 
cargo.  The  manifest  and  bills  of  lading  named  no  consignee, 
but  described  the  cargo  as  deliverable  to  order.  The  real 
owners  of  the  cargo  were  found  to  be  certain  firms  in  London, 
all  of  whom  had  been  the  owners  of  similar  packages  of  mer- 
chandise which  had  been  captured  on  a  previous  occasion,  and 
condemned  as  contraband.^  The  court  inferred  from  these 
facts  the  intention  of  concealing  from  the  scrutiny  of  Ameri- 
can cruisers  the  contraband  character  of  a  considerable  part  of 
the  cargo.  The  motive  of  such  concealment  being  "  the  ap- 
prehension of  the  claimants  that  the  disclosure  of  their  names, 
as  owners,  would  lead  to  the  seizure  of  the  ship  in  order  to  the 
condemnation  of  the  cargo." 

The  concealments  above  mentioned  were  not  of  themselves 
regarded  by  the  court  as  sufficient  to  warrant  the  condemna- 
tion of  the  cargo.  "  If  the  real  intention  of  the  owners  of  the 
cargo  was  that  the  cargo  should  be  unloaded  at  Nassau,  and 
incorporated  by  real  sale  into  the  common  stock  of  that 
island,"  the  cargo  should  have  been  "  restored,  notwithstand- 
ing the  misconduct  of  concealment.  What,  then,  was  the  real 
intention?"  This  was  inferred  by  the  court  in  part  from  the 
ship's  papers  and  in  part  from  the  character  of  the  cargo. 
The  manifest  and  bills  of  lading  showed  that  the  consignment 
was  to  order.  This  was  regarded  by  the  court  as  a  negation 
that  any  sale  was  made,  or  intended  to  be  made,  at  Nassau. 
The  final  destination  of  the  cargo,  therefore,  was  not  Nassau, 
but  some  ulterior  port,  and  must  be  inferred  from  the  charac- 
ter of  the  cargo.     A  small  part  of  this  cargo  consisted  of  arti- 

'  The  Springbok,  5  Wallace,  i.  Prize  Cases  (U.    S.  Dist.  Court), 

^The      Qertrude,      Blatchford's     374  ;  the  5/^//zm /far/,  Ibid,  387, 


452  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

cles  which  were  contraband  by  the  narrowest  definition  of  the 
term.  A  considerable  part  consisted  of  articles  useful  and 
necessary  in  war  —  such  as  army  cloth,  blankets,  boots  and 
shoes — and  therefore  contraband  within  the  construction  of 
English  and  American  prize-courts.  These  being  contraband, 
the  residue  of  the  cargo,  belonging  to  the  same  owners,  was 
included  in  the  decree  of  condemnation.' 

Case  of  the  ''Petcrhoffy  The  case  of  the  Pet er ho ff  resembles, 
in  some  respects,  that  of  the  Springbok.  The  Peterhoff  was 
a  steamer  which  sailed  from  London  with  proper  documents 
and  ship's  papers,  indicating  her  destination  to  be  Matamo- 
ras,  Mexico.  The  Rio  Grande,  for  a  portion  of  its  course,  sepa- 
rates the  territory  of  the  United  States  from  that  of  Mexico. 
The  city  of  Matamoras  is  situated  on  the  lower  waters  of  the 
river,  about  forty  miles  from  its  mouth,  and  directly  opposite 
the  city  of  Brownsville,  in  the  United  States.  The  Peterhoff 
never  reached  her  destination,  but  was  captured,  near  the 
island  of  St.  Thomas,  by  the  United  States  steamer  Vander- 
bilt,  on  suspicion  that  her  destination  was  the  blockaded  coast 
of  the  states  in  rebellion,  and  that  her  cargo  consisted  in  part 
of  contraband  of  war.  She  was  taken  to  New  York,  where 
ship  and  cargo  were  condemned  as  prize.  An  appeal  was 
taken  to  the  Supreme  Court  by  claimants  interested  in  the 
vessel  and  a  portion  of  the  cargo. 

The  court,  in  reaching  a  decision,  found  it  necessary  to  pass 
upon  the  question  of  the  right  of  a  belligerent  to  blockade  a 
boundary  riv^er,  in  order  to  determine  whether  the  ship  was 
liable  for  breach  of  blockade  or  for  carrying  contraband  of 
war. 

Upon  this  point  the  ruling  was  that,  when  a  navigable  river 
separates  two  sovereign  states,  neither  belligerent,  in  the  exer- 
cise of  his  right  of  blockade,  can  interrupt  commerce  with  the 
other  state,  if  neutral,  by  preventing  access  to  any  ports  of 
such  neutral  state  as  are  situated  upon  the  boundary  river  at 

'The  Springbok,  5  Wallace,  i;  241-258;  vol.  xiv.  Ibid.  pp.  328-331 ; 
V  Calvo,  §§  2762-2766;  vol.  vii.  Hall,  pp.  673,  674,  notej ;  III  Dig. 
Revue  de  Droit  International  pp.      Int.  Law,  §  375. 


CONTRABAND   OF   WAR  453 

any  point  of  its  course.  As  the  bona  fide  destination  of  the 
.'-hip,  as  indicated  by  its  papers,  was  Matamoras,  a  neutral 
port,  it  was  therefore  decided  that  the  ship  was  not,  and,  un- 
der the  circumstances,  could  not  be,  liable  to  condemnation 
for  breach  of  blockade. 

As  to  the  cargo,  the  decision  was  that  the  destination  of 
such  part  of  it  as  was  contraband  of  war,  according  to  the 
rules  already  cited,  was  not  the  neutral  port  of  Matamoras, 
and  "  that  these  articles,  at  least,  were  destined  for  the  use  of 
the  rebel  forces  then  occupying  Brownsville  and  other  places 
in  the  vicinity.  Contraband  merchandise  is  subject  to  a  dif- 
ferent rule  in  respect  to  ulterior  destination  from  that  which 
applies  to  merchandise  not  contraband.  The  latter  is  liable  to 
capture  only  when  a  violation  of  blockade  is  intended  ;  the 
former,  when  destined  to  a  hostile  country,  or  to  the  actual 
military  or  naval  use  of  the  enemy,  whether  blockaded  or  not. 
The  trade  of  neutrals  with  belligerents,  in  articles  not  contra- 
band, is  absolutely  free,  except  interrupted  by  a  blockade ; 
the  conveyance  by  neutrals  to  belligerents  of  contraband  arti- 
cles is  always  unlawful,  and  such  articles  may  always  be  seized 
during  transit  by  sea.  Hence,  while  articles  not  contraband 
might  be  sent  to  Matamoras  and  beyond  to  the  rebel  region, 
where  the  communication  was  not  interrupted  by  blockade, 
articles  of  a  contraband  character,  destined  in  fact  to  a  state 
in  rebellion,  or  for  the  use  of  the  rebel  military  forces,  were 
liable  to  capture  though  primarily  destined  for  Matamoras."  ' 
The  rule  that  the  ownership  of  a  portion  of  the  contraband 
cargo  rendered  articles  not  contraband,  but  belonging  to  the 
same  owners,  liable  to  condemnation  was  enforced  as  in  the 
case  of  the  Springbok? 

Penalty  for  Contraband  Trade.  The  conveyance  of  con- 
traband of  war  is  an  offence  against  the  law  of  nations.  Over 
this  offence  the  prize-courts  of  a  belligerent  are  given  jurisdic- 
tion, and,  in  the  decision  of  prize  cases,  these  courts  apply  the 

'  The  Peterhoff,  5  Wallace,  35.  65,  and  \.\\^  Jongc  Pieter,  4  Ibid.  pp. 

"  The  English  cases  of  the  Stert,     79,  85,  were  cited  by  the  court  as 

4  Robinson,  Admiralty  Reports,  p.     precedents  applicable  to  the  case. 


454  'i'HK   ELEMENTS   OF    INTERNATIONAL   LAW 

rules  and  impose  the  penalties  which  are  sanctioned  by  inter- 
national law. 

The  invariable  penalty  imposed  for  the  carriage  of  contra- 
band is  that  of  forfeiture.  In  ordinary  cases  this  penalty  is 
applied  to  the  contraband  goods  alone,  and  to  the  freight  due 
upon  them  to  the  neutral  carrier."  The  question  as  to  whether 
it  is  to  be  extended  to  other  parts  of  the  cargo  or  to  the  ship 
is  determined  by  the  knowledge  and  intention  of  their  owners, 
as  presumed  from  the  circumstances  of  the  case.  The  ancient 
penalty  for  engaging  in  contraband  trade  involved  the  forfeit- 
ure of  the  ship  and  the  non-contraband  cargo.  This  rule  has 
in  modern  times  been  relaxed  in  cases  where  such  contraband 
articles  make  up  a  minor  portion  of  the  cargo,  thus  creating  a 
presumption  of  innocence  in  favor  of  the  carrier.  In  other 
cases  the  old  presumption  remains,  and  the  burden  of  proof 
lies  upon  the  owner  of  the  ship  to  establish  his  innocence. 
Such  presumption  exists,  as  to  the  ship — 

(a.)  When  the  owner  of  the  ship  owns  any  part  of  the  con- 
traband cargo.  If  a  part  owner  of  the  vessel  be  shown  to 
have  an  interest  in  the  contraband  cargo,  his  share  only  is  for- 
feited.'' 

{d.)  When  the  greater  part  of  the  cargo  is  contraband.  In 
this  case  the  presumption  is  that  the  owner  of  the  ship  knew 
of  the  use  to  which  his  property  was  put,  and  consented  to 
such  illegal  use.' 

'  Dana's  Wheaton,  p.  663,  note  belligerents,  by  covering  up  the 
230.  "  According  to  the  modern  fraud  under  false  papers  and  with  a 
law  of  nations— for  there  has  been  false  destination." — Carrington  7^s. 
some  relaxation  in  practice  from  the  Merchants'  Ins.  Co.  8  Peters,  495. 
strictness  of  the  ancient  rules — the  ^  Boyd's  Wheaton,  p.  5S4.  '•  Con- 
carriage  of  contraband  goods  to  traband  articles  contaminate  the 
the  enemy  subjects  them,  if  capt-  parts  not  contraband  of  a  cargo  if 
ured  /n  delicto,  to  the  penalty  of  belonging  to  the  same  owner,  and 
confi.scation ;  but  the  vessel  and  the  the  non-contraband  must  share  the 
remaining  cargo,  if  they  do  not  be-  fate  of  the  contraband." — The  Pe- 
longtothe  owner  of  thecontraband  terhqff,  5  Wallace,  59;  the  Rin- 
goods,  are  not  subject  to  the  same  gende Jacob,  i  Robinson.  Adm.  Rep. 
penalty.  The  penalty  is  applied  to  pp.  89,  91  ;  the  Netitralitat,  3  Ibid, 
the  latter  only  when  there  has  been  p.  296;  Hall,  §  247;  III  Phillimore, 
some  actual  co-operation,  on  their  §  275. 
part,  in  a  meditated  fraud  upon  the  ^  III  Phillimore,  §§  275,  276  ;  the 


CONTRABAND    OF   WAR  455 

(c.)  When  fraud  or  deceit  is  attempted  by  concealment,  or 
by  the  use  of  false  papers,  or  when  a  false  destination  is 
claimed/ 

(<:/.)  When  contraband  is  carried  in  violation  of  treaty  stipu- 
lation." 

Ru/e  as  to  Innocent  Cargo.  The  innocent  cargo  is  exempt 
from  forfeiture  unless  its  ownership  is  the  same  as  that  of 
the  whole  or  a  part  of  the  contraband.' 

The  offence  of  carrying  contraband  begins  so  soon  as  the 
ship  passes  into  the  high  seas  from  the  territorial  waters  of  the 
neutral  state.  It  is  complete,  and  the  liability  to  penalty  no 
longer  exists,  when  the  articles  have  been  delivered  at  their 
hostile  destination.  A  ship  cannot  be  captured  on  its  return 
voyage,  since  there  is  no  offence  against  international  law  in 
carrying  a  cargo  of  any  character  from  a  belligerent  to  a  neu- 
tral destination.* 

Release  of  Neutral  Ship  upon  the  Surrender  of  Contraband 
Cargo.  In  a  few  instances  neutral  ships  have  been  released, 
and  allowed  to  proceed  to  their  destination,  on  condition  that 
the  contraband   articles   be  surrendered  to  the  captor.     Al- 


Bermuda,  3  Wallace,  555;  II  Hal-  II  Halleck,  pp.  248,  249;   II  Orto- 

leck,  pp.  245-247;  Dana's  Wheaton,  Ian,  chap.  vi.     "  It  was  held  by  Sir 

p.  663,  note  230.  William  Scott,  in  at  least  two  cases, 

^  TheBalfzc,  i  Acton,  Adm.  Rep.  that   the   duration  of  the  penalty 

p.  25;  the  Margaret,  Ibid.  p.  333;  was  prolonged  to  the  end  of  the  re- 

the  Rising  Sun,  1   Robinson,  104;  turn  voyage  when  false  papers  had 

III  Phillimore,  §§  275,  276.  been  used  to  evade  seizure  on  the 

'  The  Concordia,  i  Robinson,  119;  outward  voyage.  This  view  is  prop- 

the   Two  Brothers,  Ibid.  131  ;    the  erly   questioned   by   Wheaton,    on 

Hunter,  i  Dodson,  481;  III  Philli-  the  ground  that  there  must  be  a 

more,  §^'  276,  277  ;  Hall,  §  247.  detictuni  at  the  moment  of  seizure, 

^Hall,  §  247;  II  Halleck,  p.  247;  To  subject  the  property  to  confis- 

III    Phillimore,  §  276;    Upton,  p.  cation,  while  the  offence  no  longer 

332.  continues,  would   be  to   extend  it 

■*"  Generally,   when    contraband  indefinitely,  not  onh^  to  the  return 

goods  have  been  landed,  and  the  voyage,  but  to  all   future  cargoes 

vessel  has  proceeded  on  her  V03'-  of  the  vessel,   which  would    thus 

age,  neither  the  vessel  nor  the  re-  never  be  purified  from  the  conta- 

maining  cargo  is  liable  to  seizure;  gion  communicated  by  the  contra- 

a///^r,  if  the  destination  and  papers  band  articles." — Boyd's  Wheaton, 

are    false." — Can-ington    vs.    Mer-  pp.  584,  585. 
chants'    Ins.    Co.,  8    Peters,    495 ; 


456      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

though  this  practice  has  been  recognized  in  a  limited  number 
of  treaties,  it  is  entirely  opposed  to  the  rule  of  law  upon  the 
subject,  and  has  never  received,  nor  is  it  likely  to  receive,  gen- 
eral sanction.  The  surrendered  articles  must  be  carried  before 
a  prize-court  in  order  to  secure  a  decree  of  condemnation,  upon 
which  alone  a  valid  title  can  be  based.  The  court,  in  the  ab- 
sence of  the  ship's  papers,  frequently  finds  itself  unable  to 
determine,  from  lack  of  evidence,  whether  the  articles  are,  or 
are  not,  contraband  of  war ;  and,  in  the  absence  of  the  owner, 
the  master  of  the  ship  has  no  legal  power  to  surrender  any 
portion  of  his  cargo,  except  in  accordance  with  the  laws  of 
war.' 

The  Doctrine  of  Continuous  Voyages.  In  both  of  the 
above  cases  the  doctrine  of  continuous  voyages,  originated  by 
the  English  prize-courts  at  the  beginning  of  this  century,  was 
recognized  by  the  court  in  reaching  a  decree  of  condemnation. 
By  this  doctrine  the  ultimate  destination  of  a  cargo  is  held  to 
determine  its  liability  to  capture.  If  such  destination  is  a 
neutral  port,  and  if  the  cargo  is  intended  to  be  sold  there,  and 
taken  up  as  a  part  of  the  general  stock  in  trade,  the  cargo  is 
not  liable  to  condemnation.  If,  however,  a  neutral  port  is 
made  a  new  base  of  operations,  and  the  goods  are  intended  to 
be  finally  delivered  at  a  blockaded  port  ;  or  if  they  are  con- 
traband of  war,  and  are  destined  to  the  ultimate  military  use 
of  a  belligerent,  then  the  alleged  neutral  destination  will  not 
avail.  The  principle  of  continuous  voyages  is  thus  seen  to 
have  been  extended  by  the  Supreme  Court  in  its  application 
to  the  cases  of  the  Springbok  and  Pcterhoff,  although  the  fun- 
damental principle  involved,  as  announced  by  Lord  Stowell  in 
his  original  decision,  has  undergone  no  material  change."    The 

'  Dana's  Wheaton,   p.  663,  note  Folly,  2   Robinson,  Admiralty  Re- 

230;     III     Hautefeuille,     p.    274;  ports,  p.  369;  the  WilUam,  5  Ibid. 

Treaties  and    Conventions  of  the  p.  395  ;  and  the  Baltic,  i  Acton,  25  ; 

United    States,    pp.   96,    200,    260,  the    Iniannel,     2    Robinson,    197  ; 

327 ;    Field,   International  Code,  §  the  Maria,  5  Ibid.  365 ;  the  Flora, 

877.  6  Ibid.  9;    X\\e.  Ebenezer,6Vd\A.  2^0. 

•  For  a  full  account  of  the  de-  See,  also.  Ill  Phillimore, p.  394,  and 

cisionof  Lord  Stowell  upon  the  sub-  Boyd's  Wheaton,  pp.  589-592. 
ject  of  continuous  voyages,  seethe 


CONTRABAND   OF   WAR  457 

later  decision  regards  the  goods  if  contraband,  and  destined 
to  an  enemy's  use,  or  to  a  blockaded  port,  as  still  liable  to 
capture,  even  when  they  were  to  have  been  discharged  at  a 
neutral  port,  with  a  view  to  reshipment  to  the  belligerent 
destination.' 

Difference  between  the  Old  and  New  Rules.  The  rule  thus 
laid  down  by  the  Supreme  Court  of  the  United  States  is  un- 
doubtedly at  variance  with  the  provisions  of  international  law 
on  the  same  subject,  as  they  were  accepted  and  understood  at 
the  outbreak  of  the  Civil  War.  Neither  has  the  new  rule  re- 
ceived that  general  recognition  which  it  must  receive  to  entitle 
it  to  consideration  as  a  rule  of  international  law.  The  devel- 
opment of  steam  navigation,  however,  has  been  such  as  greatly 
to  facilitate  the  operations  of  blockade -running  and  carrying 
of  contraband.  So  important  has  this  development  been  that 
a  belligerent  would  now  suffer  great  injury  were  he  to  adhere 
to  the  old  rule  on  the  subject,  which  received  international 
sanction  at  a  time  when  maritime  commerce  was  carried  on  in 
sailing  vessels  and  before  the  application  of  steam  to  purposes 
of  navigation  had  become  an  accepted  fact.  Some  modifica- 
tion of  the  old  rule  is,  therefore,  both  just  and  necessary,  in 
order  to  place  a  belligerent  in  as  good  a  situation  as  that  which 
he  formerly  occupied.  What  that  modification  is  to  be  can  only 
be  deduced  from  experience,  of  which  a  sufficient  amount  has 
not  yet  been  acquired  to  justify  such  a  deduction  or  to  war- 
rant the  statement  of  a  modified  rule.  This  much  only  is  clear: 
A  powerful  belligerent  will  not,  in  the  future,  allow  himself  to 

'Inthe  caseof  the5)Jrz'«^(5<?^the  was  given  by  the  commission  for 

British  Government  was  appHed  to  its  decision.     See  Creas3^  pp.  619, 

by  the  owners  of  the  contraband  620,  for  a  full  and  able  discussion 

cargo  to  demand  restitution  of  the  of  the  subject.     See,  also,  Field's 

goods  from  the  American  Govern-  International    Code,    §    859;     the 

ment,   or   compensation    for  their  Jonge   Pteter,   4    Robinson,   Adm. 

seizure.    The  case  was  referred  to  Rep.  p.  79;   the  Maria,  5  Ibid.  p. 

the  law  officers  of  the  crown,  and  365;    the  Fretindschaft,  4  Ibid.  p. 

their  opinion  was  that  the  seizure  96;  the  Polly,  2   Ibid.  p.  361  ;  the 

was  illegal.     The  case  was  referred  Carl   Walter,  4  Ibid.  p.   207  ;   the 

to  a  mixed  commission,  and  the  il/^r<r//;7,  i  Ibid.p.80;  4  Ibid.app.  A; 

claim  was  rejected,  but  no  reason  Dana's  VVheaton,  p.  667,  note  231. 


458  THE  ELEMENTS  OF   INTERNATIONAL    LAW 

be  injured  by  articles  of  contraband  which  the  enemy  actually 
receives  from  ships  having  an  ostensibly  neutral  destination ; 
nor,  on  the  other  hand,  will  a  powerful  neutral  allow  the  prop- 
erty of  his  subjects  to  be  seized  on  the  high  seas  when  those 
goods,  although  partaking  of  the  character  of  contraband,  have 
a  bona  fide  neutral  destination.  In  the  cases  above  cited  the 
ultimate  destination  of  the  goods  was  so  clearly  hostile  as  to 
make  it  difificult,  if  not  impossible,  for  the  British  Government 
to  maintain  the  position  that  the  goods  of  its  subjects  had 
been  seized  in  the  prosecution  of  an  entirely  innocent  voyage, 
and  were  so  entitled  to  the  protection  which  that  government 
invariably  accords  to  its  subjects  when  their  rights  have  been 
wrongfully  invaded  by  a  foreign  state. 

Occasional  Contraband.  During  the  disturbed  period  inter- 
vening between  the  outbreak  of  the  French  Revolution  in 
1789  and  the  Treaty  of  Vienna  in  1815,  the.  old  usages  of 
international  law  were  subjected  to  a  severe  and  constant  strain. 
This  was  due,  in  part,  to  the  frequency  and  magnitude  of  the 
wars  that  were  carried  on,  in  which,  at  times,  nearly  all  of  the 
European  states  were  participants ;  and,  in  part,  to  the  great 
disparity  that  existed  in  the  relative  naval  and  military  power 
of  the  principal  belligerents.  During  the  greater  part  of  this 
period  the  military  supremacy  of  France  was  successfully 
maintained  against  every  effort  to  overthrow  it  by  operations 
on  land  ;  on  the  other  hand,  the  supremacy  of  England  at  sea 
w^as  so  firmly  established  as  to  secure  even  more  general  rec- 
ognition. As  these  powers  were  generally  opposed  to  each 
other,  it  is  not  remarkable  that  they  should  have  attempted 
to  interpret  the  rules  of  war,  each  in  a  sense  favorable  to  its 
own  interests  ;  and  as  the  one  was  strong  where  the  other  was 
weak,  neither  was  able  to  interpose  an  effectual  check -upon 
the  pretensions  of  the  other.  The  result  was  that  the  rules 
of  capture,  on  land  and  sea,  underwent  a  considerable  modifi- 
cation in  the  interest  of  belligerents,  and  to  the  prejudice  of 
the  rights  of  neutrals,  as  those  rights  were  then  understood. 
This  influence  upon  the  law  of  maritime  capture  was  the  more 
powerful  from  the  fact  that  the  northern  states  of  Europe, 


CONTRABAND   OF   WAR  459 

and,  to  a  certain  extent,  the  United  States  as  well,  entered 
into  general  commerce  largely  as  producers  of  raw  materials, 
which  were  consumed  by  the  principal  belligerents,  and  so 
were  obliged  to  find  a  market  in  belligerent  territory.  Thus, 
while  these  states  were  generally  neutral,  they  were  not  strong 
enough  at  sea,  even  when  acting  in  concert,  to  assert  effec- 
tively their  views  of  neutrality,  or  even  to  successfully  main- 
tain their  neutral  rights. 

Under  these  circumstances,  not  only  was  neutral  commerce 
likely  to  suffer  from  any  extension  of  the  definition  of  contra- 
band, but  the  commercial  prosperity  of  neutral  states  was 
made  to  depend,  in  no  small  degree,  upon  that  definition 
being  closely  restricted  in  its  application  to  neutral  property. 
Such  an  extension  was  effected  by  the  application  of  the  doc- 
trine of  occasional  contraband,  by  the  English  prize-courts,  to 
cargoes  of  neutral  merchandise.  According  to  this  rule  arti- 
cles were  condemned  which  had  previously  either  been  exempt 
from  seizure,  or,  if  regarded  as  contraband,  had  acquired  that 
character  only  in  exceptional  cases,  where  the  circumstances 
pointed  clearly  to  an  undoubtedly  hostile  destination.  The 
articles  so  condemned  were  those  usually  classified  as  naval 
stores  and  provisions ;  and  neutral  states  resisted  the  applica- 
tion of  the  new  rule,  partly  because  of  the  extreme  hardship 
of  the  case,  and  partly  because  it  was  not,  and  had  never  been, 
generally  recognized  as  a  rule  of  international  law.' 

1  "  By  the  modern  law  of  nations  traband.     Another  exception  from 

provisions    are    not,    in    general,  being    treated     as    contraband    is 

deemed  contraband;  but  they  may  where     the     provisions     are     the 

become  so,  although  the  property  growth    of   tlie    neutral   exporting 

of  a  neutral,  on  account  of  the  par-  country.    But  if  they  be  the  growth 

ticular  situation  of  the  war,  or  on  of  the  enemy's  country,  and  more 

account   of    their   destination.     If  especially    if   the    property  of    his 

destined   for  the  ordinary   use  of  subjects,  and  destined  for  enemy's 

life  in  the  enemy's  country,  they  use,  there  does  not  seem  any  good 

are  not,  in  general,  contraband  ;  but  reason  for  the  exemption  ;    for,  as 

it  is  otherwise  if  destined  for  mill-  Sir  William  Scott  has  observed,  in 

tary  use.     Hence,  if   destined    for  such  a  case  the  party  has  not  only 

the  army  or  navy  of  the  enemy,  or  gone  out  of  his  way  for  the  sup- 

for  his  ports  of  naval  or  military  ply  of  the  enemy,  but  he  has  as- 

pquipment.  they  are  deemed  con-  sisted  him  by  taking  off  his  surplus 


460  THE   ELEMENTS  OF  INTERNATIONAL  LAW 

The  English  prize-courts  admitted  the  force  of  the  objec- 
tion and  the  irregularity  of  the  practice  by  a  somewhat  less 
rigorous  application  of  the  new  rule,  and  certain  mitigating 
circumstances  were  recognized  as  creating  presumptions  in 
favor  of  innocence.  In  their  application  of  the  modified  rule 
it  was  held  that  if  the  goods  were  produce  of  a  neutral  state, 
and  were  shipped,  as  raw  materials,  to  strictly  commercial 
ports,  these  facts  were  allowed  to  weigh  against  condemna- 
tion and  in  favor  of  restoration.' 

The  Rule  of  Pi-e-eniption.  At  a  later  period  the  original 
doctrine  was  still  further  modified  by  the  adoption  of  the  rule 
of  pre-emption,  by  which  the  prize-courts,  in  some  cases,  decreed 
the  purchase  of  the  cargo  at  its  value  at  the  port  of  origin, 
together  with  freight  and  demurrage,  with  a  fair  mercantile 
profit,  usually  ten  per  cent.,  instead  of  condemning  it  as  con- 
traband of  war.^  The  rule,  as  modified,  continued  to  be  en- 
forced until  the  close  of  the  period  of  the  Napoleonic  wars. 
Their  justice  was  not  discussed  at  the  Congress  of  Vienna, 
and  the  Treaty  of  Vienna  contained  no  provisions  upon  the 
subject  of  maritime  capture  or  contraband  of  war.  They 
never  received  such  general  sanction  as  to  entitle  them  to  be 
accepted  as  rules  of  international  law.  On  the  other  hand, 
they  were  objected  to  from  the  first,  and  so  seriously  as  to 
lead  to  the  formation  of  alliances  to  resist  their  application. 
They  are  no  longer  seriously  maintained  as  rules  of  interna- 
tional obligation  ;  and  it  may  safely  be  said  that  no  modern 
state  would  permit  the  property  of  its  subjects  to  be  confis- 
cated by  the  operation   of  rules  the  justice  of  which  it  did 


commodities." — The  Cominercen,  i  lison,  335  ;    III    Dig.  Int.    Law,   § 

Wheaton,  382  [388].     "Admitting  370. 

that  provisions  are  not,  in  general,  '  T\\t  fonge  Margaretha,  i  Rob- 
contraband  of  war,  it  is  clear  that  inson,  Adm.  Rep.  p.  189;  III  Phil- 
they  become  so  when  destined  to  limore,  §§  249-259. 
a  port  of  naval  equipment  of  an  ^  See  Admiralty  Instructions  of 
enemy,  and,  a  fortiori,  \v\\&ti  des-  June  8, 1793,  and  the  British  Orders, 
tined  for  the  supply  of  his  army."  in  Council  of  April,  1795;  Dana's 
— Maisonnaire  vs,  Keating,  2  Gal-  Wheaton,  §§  485-501,  note  236;  11 

Halleck,  pp,  261-266. 


CONTRABAND    OF   WAR  461 

not  recognize,  or  by  the  exercise  of  rights  which  were  not 
sanctioned  by  international  law.' 

Neutral  Conveyance  of  Enemy  s  Troops  and  Despatches.  It 
has  been  seen  that  the  conveyance  of  contraband  of  war  is  an 
offence  against  the  law  of  nations.  A  neutral  individual  who 
carries  contraband  to  either  belligerent  assists  that  belligerent 
to  a  greater  or  less  extent,  depending  upon  the  character  and 
quantity  of  the  goods  transported.  A  neutral  who  goes  a  step 
further  and  engages  in  the  transport  service  of  a  belligerent  ren- 
ders still  more  material  aid  to  such  belligerent  than  is  afforded 
by  the  mere  conveyance  of  contraband,  and,  by  such  convey- 
ance of  ammunition,  provisions,  and  warlike  stores  to  a  bellig- 
erent, for  the  support  of  his  armies  in  the  field,  divests  himself 
of  his  neutral  character  and  acquires  that  of  an  enemy,  includ- 
ing the  Hability  to  capture  and  condemnation  of  both  ship 
and  cargo.'  The  conveyance  of  troops  and  despatches  oper- 
ates still  more  powerfully  to  impress  the  neutral  carrier  with 
the  enemy  character  to  the  extent  of  causing  the  ship  so  en- 
gaged to  be  condemned  as  prize  of  war — this  because,  in  point 
of  directness  and  importance,  the  service  rendered  by  the  con- 
veyance of  either  is  much  greater  than  that  afforded  by  the 
conveyance  of  ordinary  contraband.     The  assistance  rendered 

'  III  Phillimore, §§267-270;  Man-  engaged    in    the  actual  service   of 

ning,  pp.  359,  393  ;  V  Calvo,  §§  2790-  Great  Britain,  or  in  carrying  stores 

2795  ;  the  Sarah  Chrtstma,  1  Rob-  for  the  exclusive  use  of  the  British 

inson,    Adm.     Rep.    p.    238  ;    the  armies,  she  must,  to  all  intents  and 

Haabet,2\b\d.'^.\74r.  purposes,    be    deemed    a    British 

^  "An  attempt  has  been  made  to  transport.  It  is  perfectly  imma- 
distinguish  this  case  from  the  or-  terial  in  what  particular  enterprise 
dinary  cases  of  employment  in  the  those  armies  might,  at  the  time,  be 
transport  service  of  the  enemy,  engaged  ;  for  the  same  important 
upon  the  ground  that  the  war  of  benefits  are  conferred  upon  an  en- 
Great  Britain  against  France  was  a  emy,  who  thereby  acquires  a  great- 
war  distinct  from  that  against  the  er  disposable  force  to  bring  into 
United  States,  and  that  Swedish  action  against  us."''— P^r/.  5/(^/7. 
subjects  had  a  perfect  right  to  as-  The  Covimercen,  i  Wheaton,  382  ; 
sist  the  British  arms  in  respect  to  the  Carolina,  4  Rob.  256  ;  the 
the  former,  though  not  to  the  lat-  Friendship,  6  Rob.  420 ;  the  Oro- 
ter.     Whatever  might  be  the  right  zcmbo.  Ibid.  430. 

of  the   Swedish    sovereign,   acting  °  Chief -justice  Marsliall  strongly  tlis- 

under  his  own  authority,  we  are  of  sented  from  the  application  of  this  prin- 

opinion  that  if  a  Swedish  vessel  be  ciple. 


462      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

to  an  enemy  by  a  single  cargo  of  munitions  of  war,  though 
direct  and  material,  is,  at  best,  limited.  The  mischief  that 
may  result  from  the  carriage  of  a  single  despatch,  or  general 
officer,  may  have  a  decisive  effect  upon  the  issue  of  a  war. 
The  penalty  for  engaging  in  contraband  trade  usually  extends 
to  a  forfeiture  of  the  contraband  articles.  The  question  as  to 
the  ship  and  non-contraband  cargo  is  made  to  depend  on  the 
guilty  knowledge  of  their  owners.  If  they  are  forfeited  it  is 
because  a  presumption  of  such  knowledge  is  created  by  the 
fact  of  ownership.  When  troops  or  despatches  are  carried  to 
a  hostile  destination,  however,  the  presumption  of  guilt  cre- 
ated by  such  carriage  is  so  strong  as  to  be  regarded  as  con- 
clusive ;  and  the  ship  is  invariably  condemned  as  the  instru- 
ment with  which  the  offence  against  international  law  has  been 
committed.' 

Definition  of  Terms  Troops  and  Despatches.  The  term 
troops  includes  not  only  military  persons,  but  all  individiitls 
having  an  official  character  in  the  service  of  a  belligerent, 
whose  assistance  is  material  in  the  prosecution  of  the  war, 
or  whose  detention  is  calculated  to  impair  his  military  effi- 
ciency. 

Despatches  are  official  communications  between  official  per- 
sons, in  the  military  or  civil  service  of  a  state,  upon  matters 
connected  with  the  public  business.     All  other  communica- 

'  "  The  general  rule  that  the  neu-  ests,  have  been  held  to  affect  the 
tral  carrier  of  enemy's  property  is  neutral  with  the  forfeiture  of 
entitled  to  his  freight  is  now  too  freight ;  and  in  cases  of  a  more 
firmly  established  to  admit  of  dis-  flagrant  character,  such  as  carrying 
cussion  ;  but  to  this  rule  there  are  despatches  or  hostile  military  pas- 
many  exceptions.  If  the  neutral  sengers,  an  engagement  in  the 
be  guilty  of  fraudulent  or  unneu-  transport  service  of  the  enemy,  or 
tral  conduct,  or  has  interposed  a  breach  of  blockade,  the  penalty 
himself  to  assist  the  enemy  in  car-  of  confiscation  of  the  vessel  has 
rying  on  the  war,  he  is  justly  also  been  inflicted." — l^he  Cojiimer 
deemed  to  have  forfeited  his  title  ceu,  i  Wheaton,  382  ;  the  Atalanta, 
to  freight.  Hence  the  carrying  of  6  Robinson,  Adm.  Rep.  p.  440;  the 
contraband  goods  to  the  enemy,  ISIadison,  Edwards,  224 ;  V  Calvo, 
the  engaging  in  the  coasting  or  §§2796-2826;  Hall,  §§  249,  250 ;  HI 
colonial  trade  of  the  enemy,  the  Phillimore,  §§  271-274;  Dana's 
spoliation  of  papers,  and  the  fraud-  Wheaton,  §  502,  note  228. 
ulent  suppression  of  enemy's  inter- 


CONTRABAND  OF  WAR  463 

tions,  of  whatever  character,  are  unofficial,  and  therefore  not 
subject  to  classification  as  despatches. 

The  Destination  Important.  In  the  conveyance  of  troops 
and  despatches  the  destination  of  the  vessel  is  of  importance 
as  creating  a  presumption  of  guilt  or  innocence.  If  the  des- 
tination is  hostile,  the  guilt  of  the  carrier  is  presumed;  if  such 
destination  be  neutral,  the  contrary  is  the  case,  and  the  bur- 
den of  proof  lies  on  the  captor  to  establish  guilty  knowledge. 
If  the  ports  of  origin  and  destination  are  both  hostile,  an  ex- 
treme case  of  guilt  exists ;  if  such  ports  are  both  neutral,  it  is 
difficult  to  see  how  guilty  knowledge  can  be  presumed  on  the 
part  of  the  neutral  carrier.  As  in  every  other  case  of  mari- 
time capture,  questions  as  to  the  character  of  particular  de- 
spatches, and  the  consequent  liability  of  the  carrier,  are  deter- 
mined by  the  proper  prize-courts. 

Cases  of  the  "  Friendsliip  "  and  "  Greta!'  Several  condem- 
nations of  vessels  for  carrying  troops  were  made  by  the  Eng- 
lish prize-courts  during  the  period  between  1803  and  18 15. 
A  leading  case  was  that  of  the  Friendship,  a  vessel  hired  to 
bring  to  France  eighty-four  shipwrecked  officers  and  sailors. 
It  was  confiscated  because  it  appeared  in  the  evidence  that  it 
was  hired  as  a  transport,  was  not  permitted  to  take  cargo,  and 
was  being  used  as  a  transport  to  convey  these  persons,  as  a 
part  of  the  French  army,  to  a  belligerent  destination.  In  an- 
other case  a  vessel  sailed  from  Rotterdam  to  Lisbon,  where  it 
was  ostensibly  chartered  by  a  Portuguese  subject  to  carry 
cargoes  or  passengers  to  Macao ;  no  cargo  was  shipped,  but, 
after  some  time  spent  in  fitting  it  for  passengers  with  unusual 
care,  three  Dutch  officers  of  rank  embarked  in  it,  not  for 
Macao,  but  for  Batavia.  Lord  Stowell,  on  the  facts  in  the 
case,  inferred  that  a  contract  had  been  made  with  the  Dutch 
Government  before  the  vessel  left  Rotterdam,  and  condemned 
it.  The  Greta  was  a  neutral  vessel,  employed  in  carrying  cer- 
tain shipwrecked  Russian  soldiers  from  a  port  of  Japan  to  a 
destination  in  Asiatic  Russia.  She  was  captured  by  an  Eng- 
lish cruiser,  and  condemned.  Had  she  been  captured  in  the 
act  of  conveying  them   from  the  place  of  the  shipwreck  to 


464  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

any  destination,  her  act,  being  one  of  humanity,  would  have 
been  innocent.  In  the  particular  voyage  upon  which  she  was 
engaged,  however,  she  was  acting  in  the  capacity  of  a  trans- 
port.' 

Presumption  in  the  Case  of  Hostile  Despatches.  In  the  case 
of  hostile  despatches,  the  mere  presence  of  such  documents  on 
board  suffices  to  create  a  presumption  of  guilt  on  the  part  of 
the  neutral  carrier.  So  severely  is  this  rule  applied  that  a 
neutral  may  not  even  plead  compulsion  as  an  excuse,  it  being 
held  in  such  a  case  that  his  remedy,  in  the  event  of  being 
compelled  to  render  such  service  to  a  belligerent,  is  through 
his  own  government  in  the  diplomatic  way. 

Despatches  of  a  Belligerent  to  its  Ministers  and  Consuls  in 
Neutral  States.  The  despatches  of  a  public  minister  or  con- 
sul representing  a  belligerent  in  a  neutral  state  are  an  excep- 
tion to  this  rule.  "  They  are  despatches  from  persons  who 
are,  in  a  peculiar  manner,  the  favorite  object  of  the  protection 
of  the  law  of  nations,  residing  in  a  neutral  country  for  the  pur- 
pose of  preserving  the  relations  of  amity  between  that  state 
and  their  own  government.  On  this  ground  a  very  material 
distinction  arises  with  respect  to  the  right  of  furnishing  the 
conveyance.  The  neutral  country  has  a  right  to  preserve  its 
relations  with  the  enemy,  and  you  are  not  at  liberty  to  con- 
clude that  any  communication  between  them  can  partake, 
in  any  degree,  of  the  nature  of  hostility  against  you."  ^ 

Conveyance  of  Mails  in  the  Ordinary  Course  of  Business. 
The  question  of  conveying  hostile  despatches  must  not  be 
confused  with  the  carriage  of  mails  by  a  neutral,  in  accordance 
with  contracts  or  agreements,  and  in  the  way  of  ordinary  busi- 
ness. Such  contracts  not  only  have  the  sanction  of  municipal 
law,  but  are  not  infrequently  made  the  subjects  of  treaty  stip- 
ulation. It  is  not  easy  to  see  how  the  master  of  a  vessel  can 
acquire  any  duties  or  responsibilities  in  connection  with  them, 

'Hall,  §  249;  the  Friendship,  6  Rep.  p.46i,cited  by  Wheaton.p.  581; 

Robinson,  Adm.  Rep.  p.  421;  the  III  Phillimore, §  273 ;  xheCaroline, 

Orozemho,  Ibid.  p.  430.  6  Robinson,  Adm.  Rep.  p.  467  ;  the 

"^  The  Caroline,  6  Robinson,  Adm.  Madison,  Edwards,  224. 


CONTRABAND    OF   WAR  465 

save  for  their  speedy  and  safe  delivery.  A  neutral  master  who 
aids  a  belligerent  by  carrying  his  despatches,  with  full  knowl- 
edge of  their  contents,  or  under  circumstances  which  create  a 
presumption  of  such  knowledge  on  his  part,  is  justly  held  to 
the  fullest  responsibility  for  his  act.  The  conveyance  of  mails, 
however,  in  the  usual  course  of  business,  can  give  rise  to  no 
such  presumption.  The  packages  are  delivered  to  him  either 
locked  or  sealed.  He  has,  and  can  have,  no  knowledge  of 
their  contents,  much  less  of  the  character  of  the  letters  en- 
closed in  them.  Responsibility  for  them  on  the  part  of  the 
carrier,  therefore,  cannot  exist,  for  no  knowledge  or  intention 
can  be  presumed.  The  modern  tendency  is  to  facilitate  mail 
communication  in  every  way  possible,  to  remove  every  obstacle 
to  their  prompt  and  safe  delivery,  and  to  guarantee,  beyond 
question,  the  sacredness  of  private  correspondence.' 

Case  of  the  "  Trent.''  The  Trent  was  one  of  a  line  of  mail 
steamers  employed  in  general  mail  and  transportation  service 
between  Havana  and  London.  On  November  7,  1861,  she 
sailed  from  Havana,  having  on  board,  among  other  passengers, 
four  persons,  Messrs.  Mason  and  Slidell,  and  their  secretaries, 
who  were  en  route  to  Europe,  where  they  were  to  be  employed 
as  diplomatic  agents  of  the  Confederate  States.  On  Novem- 
ber 8th  the  Trent  was  stopped  on  the  high  seas  by  the  San 
Jacinto,  a  public  armed  vessel  of  the  United  States,  whose 
commander,  Captain  Wilkes,  sent  on  board  a  search-party 
composed  of  an  ofificer  and  a  detachment  of  marines.  The  two 
envoys,  with  their  secretaries,  were  seized  by  the  search-party, 
taken  on  board  the  San  Jacinto,  and  conveyed  to  New  York. 
The  Trent  was  then  released,  and  allowed  to  proceed  on  her 
way. 

So  soon  as  the  facts  were  brought  to  the  attention  of  the 
British  Government,  a  demand  was  made  upon  the  United 
States  for  the  restoration  of  the  arrested  persons.     Their  dip- 

'  The  rule  of  international  law,  ly  captured. —  Field,  International 

however,  still  authorizes  the  ex-  Code,   §   862;    Lushington,   Naval 

amination  of  mails  found  on  board  Prize  Law,  introduction,  p.  xii. 
vessels  which  have  been  regular- 


466  THE   ELEMENTS  OF   INTERNATIONAL  LAW 

lomatic  character  was  not  drawn  in  question,  their  surrender 
being  demanded  on  the  ground  that  they  had  been  forcibly 
taken  from  a  neutral  vessel  on  the  high  seas,  and  in  the  pros- 
ecution of  a  voyage  from  one  neutral  port  to  another.  They 
were  surrendered  by  the  United  States  upon  the  ground  of 
the  irregularity  of  their  seizure. 

Conclusions.  The  case  of  the  Trent  illustrates  certain  prin- 
ciples of  the  law  of  maritime  capture. 

((7.)  The  Trent,  being  a  neutral  vessel,  was  liable  to  search 
upon  the  high  seas  by  any  properly  documented  armed  vessel 
in  the  service  of  a  belligerent  power. 

(/;.)  If  the  commander  of  the  searching  vessel  had  found 
enemy  despatches  on  board,  or  had  reason  to  believe  that  such 
despatches  were  being  carried,  it  was  his  duty  to  seize  the  ves- 
sel and  send  her  to  a  port  of  the  United  States,  with  a  view 
to  a  judicial  determination  of  the  question  involved. 

(r.)  In  the  exercise  of  his  belligerent  right  it  was  his  duty 
to  capture  the  vessel ;  or  release  her,  after  having  executed 
the  right  of  search.  No  intermediate  course  was  possible. 
His  action,  therefore,  in  seizing  certain  persons,  under  any 
pretext,  was  without  warrant  of  law. 

(^.)  The  destination  of  the  Trent  was  neutral,  a  fact  which 
should  have  created  a  strong  presumption  of  innocence.  The 
fact  that  her  port  of  origin  was  also  neutral  should  have  made 
the  presumption  conclusive  as  to  innocence.' 

'  For  discussions  of  this  case,  see  Charleston  in  1780,  and  reached 
Dana's  Wheaton,  p.  648,  note  ;  Ber-  Martinique,  in  the  West  Indies,  in 
nard.  Neutrality  of  Great  Britain,  safety.  From  there  he  embarked 
pp.  157,  225;  Nys,  La  Guerre  Mar-  in  a  Dutch  packet,  the  Mercury, 
itime,  p.  46;  V  Calvo,  §§  2812-2826;  for  Holland.  He  was  thus  on  board 
H  Halleck,  p.  224,  note ;  Snow,  a  neutral  vessel  sailing  between 
Cases  in  Int.  Law,  p.  486.  The  neutral  ports.  When  three  days 
case  of  Henry  Laurens  is,  in  out  the  Mercury  was  overhauled 
many  respects,  the  same  as  that  of  by  the  British  ship  Vestal.  Mr. 
the  Tretit.  Mr.  Laurens  was  sent  Laurens  and  his  secretary  were 
upon  a  mission  to  Holland,  with  forcibly  removed,  their  papers  were 
the  authority  of  Congress,  to  se-  seized,  and  they  were  conveyed  as 
cure  the  recognition  of  the  in-  prisoners  to  St.  John's,  Newfound- 
dependence  of  the  colonies  and  to  land,  where  they  were  committed, 
obtain  a  loan  of  money.     He  left  under  a  charge  of  high-treason,  to 


CONTRABAND   OF   WAR  467 

References.  For  further  information  upon  this  subject  the  student  is 
referred  to  Vattel,  liv.  iii.  chap.  vii.  §§  112,  113;  II  Azuni,  chap.  ii.  pp. 
144- 1 57  ;  Hall,  part  iv.  chaps,  v.  vi. ;  Boyd's  Wheaton,  §§  476-508  ;  V  Cal- 
vo,  §§  2708-2826  ;  Halleck,  chap.  xxvi.  ;  Manning,  book  v.  chaps,  vii.  viii. ; 
III  Phillimore,  pp.  387-472  ;  II  Wildman,  pp.  210-245  ;  Dahlgren,  pp.65- 
100;  Woolsey,  §§  193-199  ;  Nys,  "La  Guerre  Maritime,"  chap,  iii.;  Glass, 
"  Marine  International  Law,"  pp.  464-508;  II  G.  F.  De  Martens,  §§  314- 
319;  II  Ortolan,  chap.  vi. ;  II  Twiss,  chap.  vii. ;  Lawrence, "  International 
Law,"  chap.  vi. ;  Dana's  Wheaton,  §§  476-508  ;  Lawrence's  Wheaton,  §§ 
476-508;  III  Digest  of  International  Law,  §§  368-391;  Wheaton,  "His- 
tory of  the  Law  of  Nations,"  pp.  115,  134,  313-401  ;  Kliiber,  §§  288-292  ; 
Heffter,  pp.  296,  304;  and  II  Hautefeuille,  pp.  69-189.  See,  also,  the 
article  entitled  "  Les  Droits  de  la  Contrebande  de  Guerre,"  by  M.  R. 
Kleen,  vol.  xxv.  "  Revue  de  Droit  International,"  pp.  7-34,  132-161,  239- 
286,  389-409;  vol.  xxvi.  Ibid.  pp.  214-218;  vol.  xxvii.  Ibid.  pp.  58-75;  R. 
Westlake,  vol.  ii.  Ibid.  p.  614. 

the  Tower  of  London.     After  the  —  Sparks,  Diplomatic  Correspon- 

surrender  at  Yorktown  the'r  status  dence,  vol.  ii.  p.  461  ;    Upton,  Law 

was  changed  to  that  of  prisoners  of  of    Nations   Affecting   Commerce 

war,  and  Mr.  Laurens  was  eventu-  during  War,  pp.  360,  361. 
ally  exchanged  for  Lord  Cornwall  is. 


CHAPTER  XIV 
BLOCKADE  :    BREACH    OF    B[,OCKADE 

Nature  of  the  Restriction.  The  most  extensive,  and  in 
some  respects  the  most  effective,  restraint  which  the  law  of 
nations  permits  a  belligerent  to  impose  upon  neutral  com- 
merce is  that  involved  in  the  exercise  of  the  right  of  block- 
ade. The  rules  of  maritime  capture  permit  him  to  seize  upon 
the  high  seas  certain  contraband  articles,  which  are  destined 
to  the  enemy's  use,  or  are  calculated  to  aid  that  enemy  in  his 
military  operations.  But  non-contraband  articles  are  exempt 
from  seizure,  even  though  they  have  a  belligerent  destination, 
and  the  ship  incurs  no  liability  whatever.  By  the  establish- 
ment of  a  blockade,  however,  he  may  not  only  prevent  the  in- 
troduction of  contraband  articles,  but  may  absolutely  prohibit 
access  to  his  enemy's  coast,  and  so,  for  the  time,  interrupt  all 
commercial  intercourse  with  the  outside  world.' 

Definition.  The  interruption  or  suspension  of  neutral  com- 
merce which  results  from  the  forcible  closing  of  a  belligerent's 
ports  or  harbors  is  called  a  blockade.  A  belligerent,  in  the  ex- 
ercise of  this  right,  may  choose  any  port  or  harbor  of  his  en- 
emy, any  portion  of  his  coast  line,  or  any  entrance  to  a  river, 
gulf,  or  bay,  situated  entirely  within  the  territorial  limits  of  a 
hostile  state.'     He  may  not,  however,  by  the  establishment  of 

1  II  Ortolan,  liv.  iii.  chap.  ix.  pp.  and  legalize  the  capture  of  a  neu- 

326,  327;    Upton,  pp.  275,  276;    V  tral  vessel  for  violating  it,  a  state 

Cal'vo,§§  2827-2829;  Snow,  p.  148.  of  actual  war  must  exist,  and  the 

"  "  One   belligerent  engaged  in  neutral   must  have  knowledge  or 

actual  war  has  a  right  to  blockade  notice  that  it   is  the  intention  of 

the  ports  of  the  other,  and  neutrals  one    belligerent    to    blockade   the 

are  bound  to  respect  that  right.  " —  ports   of    the    other."  —  Ibid.     To 

The  Prize  Cases,  2  Black,  35.    "To  create  this  and   other  belligerent 

justify  thq  exercise  of  this  right.  rights,  as  against  neutrals,  it  is  not 


BLOCKADE— BREACH  OF  BLOCKADE 


469 


a  naval  blockade,  attempt  to  assume  control  over  commerce  by 
land,  or  deny  access  to  a  river,  or  other  navigable  water  bound- 
ary, between  the  territory  of  his  enemy  and  that  of  a  neutral.' 
He  may  prevent  access  to  the  blockaded  coast  by  means  of 
ships-of-war  or  by  batteries  on  land,  or,  if  the  circumstances 
be  favorable,  both  measures  may  be  resorted  to.  He  may,  by 
an  investment,  blockade  a  fortified  place  on  land ;  and  this 
may  be  done  as  an  incident  of  siege  operations,  or  with  a  view 
to  the  reduction  of  the  place  by  cutting  off  its  supplies  of 
food  or  water.  The  right  of  a  belligerent  to  blockade  an  en- 
emy's port  arises  from  his  right  to  besiege  it.  The  right  is  the 
same  in  both  cases  ;  the  two  operations  differ  in  purpose  only; 
in  the  one  case  the  reduction  of  the  place  is  the  object  aimed 


necessary  that  the  party  claiming 
them  should  be  at  war  with  a  sepa- 
rate and  independent  power;  the 
parties  to  a  civil  war  are  in  the 
same  predicament  as  two  nations 
who  engage  in  a  contest  and  have 
recourse  to  arms." — Ibid. 

'  Hall,  §  266;  II  Ortolan,  p.  332. 
"  The  mouth  of  the  Rio  Grande  was 
not  included  in  the  blockade  of 
the  ports  of  the  rebel  states,  set 
on  foot  by  the  National  Govern- 
ment during  the  late  rebellion  ; 
and  neutral  commerce  with  Mat- 
amoros,  a  neutral  town  on  the  Mex- 
ican side  of  the  river,  except  in  con- 
traband destined  to  the  enemy,  was 
entirely  free."— The  Peierhoff,  5 
Wallace,  28.  "Seinble,  that  a  bel- 
ligerent cannot  blockade  the  mouth 
of  a  river  occupied  on  one  bank  by 
neutrals  with  complete  rights  of 
navigation." — Ibid.  "A  neutral, pro- 
fessing to  be  engaged  in  trade  with 
a  neutral  port,  under  circumstances 
which  warrant  close  observation 
by  a  blockading  squadron,  must 
keep  his  vessel,  while  discharging 
or  receiving  cargo,  so  clearly  on 
the  neutral  side  of  the  blockading 
line  as  to  repel,  so  far  as  position 
can  repel,  all  imputation  of  an  in- 


tent to  break  the  blockade.  Neg- 
lect of  that  duty  may  well  justify 
capture  and  sendmg  in  for  adjudi- 
cation ;  though,  in  the  absence 
of  positive  evidence  that  the  neg- 
lect was  wilful,  it  might  not  justify 
a  condemnation." — The  Dashing 
Wave,  5  Wallace,  170.  "A  neu- 
tral vessel,  at  anchor,  completely 
laden  with  a  neutral  cargo,  on  the 
neutral  side  of  a  river  dividing 
neutral  from  hostile  water,  wash- 
ing a  blockaded  coast,  was  captured 
as  being  subject  to  just  suspicion 
of  an  intent  to  break  the  blockade. 
The  captain  of  the  vessel  (who. 
was,  however,  absent  at  the  time 
of  capture)  and  the  mate,  being 
examined  in preparatorio,  testified 
that  she  was  in  neutral  water  when 
captured;  a  stevedore,  yet  on  board, 
that  she  had  drifted  to  the  place 
where  she  was  taken  under  stress 
of  weather;  he  not  knowing 
whether,  when  captured,  she  was 
in  neutral  water  or  not :  Held,  that 
this  preliminary  testimony  war- 
ranted restoration." — The  Teresita, 
5  Wallace,  180;  The  Fran  Ilsabe, 
4  Robinson,  Adm.  Rep.  p.  64;  the 
Stert,  Ibid.  p.  66  ;  \.\\q  Jonge  Pieter, 
Ibid.  p.  79 ;  the  Ocean,  3  Ibid.  p.  297. 


470  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

at ;  in  the  other,  the  interruption  of  the  commercial  inter- 
course.' 

What  is  a  Valid  Blockade  ?  At  one  time  considerable 
doubt  existed  as  to  the  manner  in  which  an  enemy's  ports 
should  be  closed,  in  order  to  constitute  a  blockade  which 
should  be  valid  at  international  law.  This  was  set  at  rest 
by  the  fourth  article  of  the  Declaration  of  Paris,  which  pro- 
vides that  "  a  blockade,  to  be  binding,  must  be  effective." 
To  this  declaration  nearly  all  the  civilized  states  of  the  world 
were  signatory  parties,  and,  as  the  United  States  has  always 
maintained  the  principle  announced  in  the  declaration,  that 
rule  may  now  be  accepted  as  the  existing  rule  of  international 
law  upon  thi  subject.'^ 

How  Established  and  Notified.  As  an  attempt  to  enter  a 
blockaded  port  is  a  flagrant  violation  of  international  law, 
involving  both  ship  and  cargo  in  the  severest  penalties,  it  is 
important  that  official  information  of  its  existence  should  be 
conveyed  to  neutrals,  in  order  that  they  may  know  when  inter- 
course with  the  place  becomes  illegal  and  their  liability  to 
capture  begins.  This  is  important,  because  none  but  effective 
blockades  are  recognized  as  lawful,  and,  until  a  de  facto 
blockade  is  established,  neutrals  are  under  no  obligation 
to  relinquish  their  commercial  intercourse  with  an  enemy's 
port.  In  other  words,  a  neutral  vessel  incurs  no  penalty 
by  entering  a  port  which   is  not  actually  blockaded  by  the 


'  "A  blockade  may  be  made  ef-  the  Nancy,  i  Acton,  Adm.  Rep.  p. 

fectual   by  batteries   on    shore   as  64;  the  Eagle,  Ibid.  p.  65;  III  Dig. 

wellasby  ships  afloat,  and, in  case  of  Int.  Law,  §§  359,  360. 

an  inland  port,  may  be  maintained  "^  II  Halleck,  p.  215;  Hall,  §  257; 

by  batteries  commanding  the  river  Creasy,  §  600;  Lawrence,  Int.  Law, 

or  inlet,  by  which   it   may  be  ap-  §  272.      A  paper,  or  constructive, 

proached,  supported    by   a    naval  blockade    is    one    established    by 

force  sufficient  to  warn  of?  in  no-  proclamation    without    the    actual 

cent  and  capture  offending  vessels  presence  of  an  adequate  blockad- 

attempting  to  enter." — TheCzrcas-  ing  force  to  prevent  the  entrance 

szaji,  2  Wallace,  135;  V  Calvo,  S§  .  of  neutral  vessels  into  the  port  or 

2828-2840 ;  Manning,  pp.  402,  403  ;  ports  so  pretended  to  be  blockaded. 

II   Halleck,  pp.  212-215;  Hall,  §§  — II    Halleck,  p.   216.      See,  s.\r-o, 

257-260;  Kliiber,  §  297  ;  Lawrence,  For.  Rel.  U.  S.  1879,  pp.  886-893, 

§§  269-271  ;  Bluntschli,  §§827-840;  1038,1039. 


BLOCKADE— BREACH  OF  BLOCKADE         47 1 

ships  or  batteries  of  a  belligerent  This  notification  is 
given — ' 

{a.)  By  proclajnation,  announcing  the  date  upon  which  a 
blockade  will  be  established  at  a  particular  port.  If  a  force 
adequate  to  the  maintenance  of  the  blockade  be  not  stationed 
opposite  the  blockaded  port  on  the  date  mentioned  in  the 
proclamation,  a  neutral  vessel  incurs  no  penalty  by  entering 
or  leaving  the  port.  This  is  the  practice  of  England  and  the 
United  States.'  A  blockade  solely  supported  by  proclamation, 
sometimes  -galled  a  paper  blockade,  is  not  lawful  and  need  not 
be  observed  by  neutrals.  Such  undertakings  were  not  infre- 
quently resorted  to  by  Great  Britain  and  France  during  the 
Napoleonic  wars,  and  were  finally  placed  under  the  ban  of 
international  law  by  the  clause  of  the  Declaration  of  Paris 
that  blockades  to  be  binding  must  be  effective.' 

{b.)  By  notification  or  endorsement.  This  is,  in  substance, 
a  warning  given  to  neutral  ships  which  are  about  to  enter  a 
blockaded  port.  The  notification  is  given  by  ships  of  the 
blockading  squadron,  and  is,  or  should  be,  endorsed  on  the 
ship'  s  papers  of  the  vessel  notified  or  warned  away.  An 
attempt  to  enter  after  such  notification  constitutes  a  breach 
of  blockade,  and  renders  the  vessel  liable  to  seizure  and  con- 
demnation.* 

By  proclamation  and  notification.  This  is  a  combination 
of  the  preceding  methods.  A  proclamation  is  first  issued  fix- 
ing the  date  upon  which  the  blockade  will  be  established.  A 
neutral  vessel  approaching  the  port  after  that  date  is  warned 

1  Dahlgren,  Int.  Law,  pp.  26,  61 ;  British  Orders  in  Council  and  the 

the  Betsey,  i  Robinson,  Adm.  Rep.  Berlin    and    Milan  decrees  of  the 

p.  93;  the  Nancy,  i  Acton,  Ibid.  p.  Emperor  Napoleon,  see  Edwards's 

64;  the  Eagle,  Ibid.  p.  65.  Admiralty  Reports,  Appendices  A 

'^  II  Halleck,  p.  217  ;  II  Wildman,  to  X. 

pp.  187-194;    II    Ortolan,  liv.  iii.  "  It  is  a  settled  rule  that  a  vessel 

chap.  ix.  p.  335  ;    the  Vrow  Johan-  in  a  blockaded  port  is  presumed  to 

na,  2  Robinson,  Adm.  Rep.  p.  109.  have  notice  of  a  blockade  as  soon 

For  a  proclamation  of  the  States-  as  it  commences. — The  Prize  Cases, 

General  of  Holland    instituting   a  2  Black,  635;    III  Dig.  Int.  Law, 

blockade,  see  3  Robinson,  326,  327,  §§  359-  360;    the    Vroew  Jxidith,  i 

note.  Robinson,  150. 

=  V  Calvo,  §§  2909-2938.    For  the 


47^  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

off  by  the  blockading  squadron,  and  is  only  regarded  as  liable 
to  capture  if,  after  such  warning,  an  attempt  be  made  to 
enter.  This  rule  is  advocated  by  France,  and  was  outlined 
by  the  President  of  the  United  States  in  his  proclamation  of 
April  19,  1 861.  The  prize-courts  of  the  United  States  have 
ruled  that  the  second  notification  is  not  legally  necessary.' 

It  is  thus  seen  that  a  mere  notification,  by  proclamation  or 
otherwise,  not  accompanied  by  the  presence  of  a  squadron, 
or  by  the  establishment  of  batteries  at  the  blockaded  port, 
does  not  constitute  a  valid  blockade  at  international  law.  On 
the  other  hand,  if  a  de  facto  blockade  be  established  by  a  bel- 
ligerent at  an  enemy's  port,  it  must  be  respected  by  neutrals 
as  having  the  sanction  of  international  law.*  Neutral  vessels 
attempting  to  enter,  or  desiring  in  good  faith  to  ascertain 
whether  such  a  blockade  exists,  are  entitled  to  a  notification 
or  warning.  An  attempt  to  enter  by  night,  or  by  the  use  of 
force  or  deception,  or  a  refusal  to  stop,  or  to  observe  the  sig- 
nals and  warning  guns  of  the  blockading  squadron,  renders 
the  vessel  liable  to  capture;  the  presumption  being  that  a 
breach  of  blockade  is  intended.  By  far  the  greater  number 
of  attempts  to  break  blockade  are  made  in  this  way.' 

The  presence  of  a  blockading  squadron  makes  either  ingress 
or  egress  unlawful.  Vessels  in  port  at  the  date  when  the  block- 
ade begins  are  permitted  to  leave  with  whatever  cargo  they 
may  have  on  board  at  that  time.  In  strictness,  they  may  not 
complete  their  lading,  after  the  blockade  has  been  formally 

'  "Wi&Heinrich  and  Maria,  i  Rob-  blockade  it  has  exercised  only  bel- 

inson,  Adm.  Rep.  p.  146;  V  Calvo,  ligerent  rights,  and  as  a  sovereign 

§5  2828-2839;  III  Dig.  Int.  Law,  §§  it  might,   by  a   municipal   regu.!a- 

359,  360.     "  It  seems  that  by  the  tion,  have  interdicted  all  commerce 

true  construction  of  the  proclama-  with  ports  in  the  states  of  the  in- 

tion  of  the  President  of  April  19,  surgents." — Ibid. 
i86r,  only  those  who  are  ignorant         "  Dahlgren,  Int.  Law,  p.  51;   III 

of  the  blockade  are  entitled  to  the  Dig.  Int.  Law,  §§  359,  360.    "  Neu- 

warning    and    endorsement    men-  trals  may  question   the   existence 

tioned    in    the    proclamation." —  of  a  blockade,  and  challenge   the 

The  Revere,  2  Sprague,  107.     "As  authority  of  the    party  which  has 

against    the     rebels,    the    United  undertaken  to  establish  it." — Prize 

States  has  both  sovereign  and  bel-  Cases,  2  Black,  635. 
ligerent  rights.    In  establishing  the         '  Dahlgren,  Int.  Law,  p.  51. 


BLOCKADE— BREACH  OF  BLOCKADE         473 

established,  and  they  have  been  held  liable  to  capture  for  so 
doing.'  As  the  object  of  a  simple  blockade  is  the  interrup- 
tion of  commercial  intercourse  only,  the  public  armed  vessels 
of  neutral  powers  are  usually  permitted  to  enter  and  leave  a 
blockaded  port.  Their  visit  is  for  a  public  purpose ;  they  do 
not  carry  in  or  bring  out  merchandise,  and  so  cannot  inter- 
fere with  the  purpose  for  which  the  blockade  was  established. 
Moreover,  a  refusal  to  permit  them  to  enter  may  inflict  un- 
necessary hardship  upon  a  neutral  government  or  its  subjects, 
without  in  any  way  contributing  to  the  purpose  for  which  the 
war  was  undertaken." 

Cases  of  Innocent  Entrance  and  Exit.  Hall  mentions  a  few 
instances  in  which  merchant  vessels  may  pass  into,  or  out  of, 
a  blockaded  port  without  breach  of  blockade. 

(rt.)  When  a  maritim.e  blockade  does  not  form  part  of  a 
combined  operation  by  sea  and  land,  internal  means  of  trans- 
port by  canals,  which  enable  a  ship  to  gain  the  open  sea  at  a 
point  which  is  not  blockaded,  may  be  legitimately  used.  The 
blockade  is  limited  in  its  effect  by  its  own  physical  imperfec- 
tion. Thus,  during  a  blockade  of  Holland,  a  vessel  and  cargo 
sent  to  Embden,  which  was  in  neutral  territory,  and  issuing 
from  that  port,  was  not  condemned.^ 

{b^  If  a  vessel  is  driven  into  a  blockaded  port  by  such  dis- 
tress of  weather,  or  want  of  provisions  or  water,  as  to  render 
entrance  an  unavoidable  necessity,  she  may  issue  again,  pro- 
vided her  cargo  remains  intact.*     And  a  ship  which  has  been 


'  "That   a  belligerent  may  law-  Union  Insurance  Co.,  3  Wheaton, 

fully   blockade    the    port    of    his  194. 

enemy  is  admitted.     But  it  is  also  ^  Hall,    Int.    Law,    p.    627;    the 

admitted  that  this  blockade  does  Adonis,  5  Rob.  Adm.  Rep.  p.  258 ; 

not,  according  to    modern   usage,  the    Mariana   Flora,  7    Wheaton, 

extend  to  a  neutral  vessel  found  in  59;   the  Alexander,  4   Rob.  Adm. 

port,  nor  prevent  her  coming  out  Rep.  p.  93;    III    Dig.  Int.  Law,  §§ 

with  the  cargo  which  was  on  board  359,  360. 

when  the  blockade  was  instituted.  '  The  Stert,  4  Rob.  Adm.  Rep. 

If,  then,  such  a  vessel  be  restrained  p.  65  ;  the  Twee  Gebroeders,  3  Ibid, 

from  proceeding  on  her  voyage  by  p.  336;  the  Magnus,  i  Ibid.  p.  31. 

the  blockading  squadron,  the  re-  "The ///^r//^^//^;/^,  2  Rob.  Adm. 

straint  is   unlawful."— Olivera  vs.  Rep.  p.  324;  the  Fortima,  5  Ibid. 


474  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

allowed  by  a  blockading  force  to  enter,  within  its  sight,  is 
justified  in  assuming  a  like  permission  to  come  out ;  but  the 
privilege  is  not  extended  to  cargo  taken  on  board  in  the  block- 
aded port.' 

Breach  of  Blockade:  Penalty.  The  offence  of  attempting 
to  enter  or  depart  from  a  port  or  place  of  a  belligerent  against 
which  a  lawful  blockade  has  been  established  is  called  a 
breach  of  blockade.  An  attempt  on  the  part  of  a  neutral 
merchant  ship  to  enter  a  blockaded  port  constitutes  a  breach 
of  blockade  by  ingress ;  an  attempt  to  escape  from  such  block- 
aded port  or  place  constitutes  a  breach  of  blockade  by  egress. 
The  penalty  for  breach  of  blockade  consists  in  the  forfeiture 
of  the  ship  and  cargo.  As  the  offence  consists  in  carrying  on 
commercial  intercourse  with  a  blockaded  port,  the  forfeiture 
includes  everything  which  is  engaged  in  the  illegal  venture.^ 
"  If  their  owners  are  different,  the  vessel  may  be  condemned 
irrespectively  of  the  latter,  which  is  not  confiscated  when  the 
person  to  whom  it  belongs  is  ignorant  at  the  time  of  shipment 
that  the  port  of  destination  is  blockaded,  or  if  the  master  of 
the  vessel  deviates  to  a  blockaded  harbor.  If,  however,  such 
deviation  takes  place  to  a  port  the  blockade  of  which  was 
known  before  tht  ship  sailed,  the  act  is  supposed  to  be  in  the 
service  of  the  cargo,  and  the  complicity  of  the  owner  is  as- 
sumed." ' 

Duration  of  the  Penalty.  The  penalty  begins  when  a  vessel 
clears  from  a  neutral  port  with  a  hostile  destination  against 
which  a  blockade  has  been  regularly  established,  and  of  the 

p.  27;   the  Adonis,  5  Ibid.  p.  256;  Schroeder,  3    Rob.   Adm.   Rep.  p. 

the    Shepherdess,    5    Ibid.    p.    262;  160. 

the  Spes  and  Irene,  5   Ibid.  p.  79;  -  III  Phillimore,  §§  316-321;  II 

the  Charlotta,  Edwards,  252;   the  Halleck,  pp.  238-240;  V  Calvo,  §§ 

Elizabeth,   Ibid.   199;    Hall,  §  265;  2880-2908;    Hall,  §    264;    Vattel, 

Bluntschli,  §  838.      "To  justify  a  liv.  iii.  chap.  vii.  §  117;    II  Tvviss, 

vessel    in   attempting   to    enter   a  §§    109- 116;   the  Adonis,   5    Rob. 

blockaded    port,   she  must   be  in  Adm.    Rep.    p.    257;    the    Apollo, 

such  distress  as  to  render  her  en-  Ibid.  p.  287;  the  Byfield,  Edwards, 

try  a  matter  of  absolute  and   un-  Adm.  Rep.  p.  188;  the.  Manchester, 

controllable   necessity." — The  Di-  2  Acton,  Ibid.  p.  61. 

a7ia,  7  Wallace,  354.  '  Dahlgren,    pp.   54-61  ;    Hall,  § 

'  Hall,  §  265  ;  the  fafroiu  Maria  264. 


BLOCKADE— BREACH  OF  BLOCKADE 


475 


existence  of  which  the  neutral  has,  or  is  presumed  to  have, 
sufficient  knowledge.  An  official  proclamation  of  a  blockade, 
made  by  a  belligerent  and  communicated  to  neutral  powers, 
would  constitute  such  a  presumption  of  knowledge.'  If,  on 
the  other  hand,  the  blockade  existed  without  proclamation, 
the  presumption  would  be  in  favor  of  the  neutral  vessel,  and 
it  would  be  entitled  to  a  warning  in  approaching  the  block- 
aded port.^ 

The  former  rule  was  that,  if  the  distance  between  the  ports 
of  origin  and  destination  was  so  great  as  to  require  a  consider- 
able time  in  the  prosecution  of  the  voyage,  a  neutral  was  en- 
titled to  the  presumption  that  the  blockade  had  been  raised 
during  the  continuance  of  his  voyage,  and  so  was  entitled  to  a 
warning  if  the  blockade  existed  at  the  time  of  his  arrival  at 
the  port  of  destination.^     The  introduction  of  steam  and  the 


'  "  A  vessel  sailing  from  a  neutral 
port  with  intent  to  violate  a  block- 
ade is  liable  to  capture  and  con- 
demnation as  prize  from  the  time 
of  sailing." — The  Circassian,  2  Wal- 
lace, 135.  "  Where  a  vessel  knows 
of  a  blockade  when  she  sails,  and 
has  no  just  reason  to  suppose  it 
has  been  discontinued,  her  ap- 
proach to  the  mouth  of  a  block- 
aded port  for  inquiry  is  itself  a 
breach  of  the  blockade,  and  sub- 
jects both  vessel  and  cargo  to 
seizure  and  condemnation." — The 
Cheshire,  3  Wallace,  231  [235]. 
"  A  blockade,  once  regularly  pro- 
claimed and  established,  will  not 
be  held  to  be  ineffective  by  con- 
tinual entries  in  the  log-book,  sup- 
ported by  testimony  of  officers  of 
the  vessel  seized,  that,  the  weather 
being  clear,  no  blockading  vessels 
were  to  be  seen  oflf  the  port  from 
which  the  vessel  sailed." — T\\q  An- 
dromeda, 2  Wallace,  481. 

»  Dahlgren,  pp.  43-54- 

^  "  No  trade  honestly  carried  on 
between  neutral  ports,  whether  of 
the  same  or  different  nations,  can 
be  lawfully  interrupted  by  bellig- 


erents ;  but  good  faith  must  pre- 
side over  such  commerce  :  enemy 
commerce  under  neutral  disguises 
has  no  claim  to  neutral  immunity. 
.  .  .  Neutrals  may  establish  them- 
selves, for  the  purposes  of  trade,  in 
ports  convenient  to  either  bellig- 
erent ;  and  may  sell  or  transport 
to  either  such  articles  as  either 
may  wish  to  buy,  subject  to  the 
risks  of  capture  for  violation  of 
blockade  or  for  the  conveyance  of 
contraband  to  belligerent  ports."  — 
The  Bermuda,  3  Wallace,  514.  "  A 
vessel  destined  for  a  neutral  port 
with  no  ulterior  destination  for  the 
ship,  or  none  by  sea  for  the  cargo 
to  any  blockaded  place,  violates  no 
blockade." — The  Peterhoff,  5  Ibid. 
28.  "  Destination  alone  justifies 
seizure  and  condemnation  of  ship 
and  cargo  in  voyage  to  ports  under 
blockade;  and  such  destination 
justifies  equally  seizure  of  contra- 
band in  voyage  to  ports  not  under 
blockade  ;  but  in  the  last  case,  ship 
and  cargo  not  contraband  are  free 
from  seizure,  except  in  case  of  fraud 
or  bad  faith."  —  The  Bcrimtda,  3 
Wallace,  514.      "  Mere  sailing  for 


476 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


telegraph,  however,  have  made  it  practically  impossible  for 
such  a  state  of  affairs  to  exist  at  the  present  time.  Indeed,  as 
blockade-running  is  now  carried  on  in  swift  steamers,  specially- 
constructed  for  the  purpose,  no  defence  is  usually  attempted 
in  the  case  of  a  vessel  captured  in  the  act. 

When  the  offence  is  one  of  egress  the  penalty  continues 
until  the  vessel  reaches  the  territorial  waters  of  a  neutral  state. 
The  liability  to  capture  also  ceases  when  the  blockade  is  raised 
during  the  return  voyage,  since  the  offence  exists  only  so  long 
as  the  blockade  exists.' 

Termination  of  Blockade.  A  blockade  ceases  when  it  is  dis- 
continued by  the  belligerent  who  establishes  it,  or  is  raised 
by  an  exercise  of  force  on  the  part  of  the  belligerent  against 
whom  it  is  declared.    In  the  latter  case  the  right  of  intercourse 


a  blockaded  port  is  not  anofifence; 
but  where  the  vessel  has  a  knowl- 
edge of  the  blockade,  and  sails  for 
the  blockaded  port  with  the  inten- 
tion of  violating  it,  she  is  clearly 
liable  to  capture." — The  Ad?niral, 
3  Wallace,  604.  "  A  voyage  from  a 
neutral  port  to  a  belligerent  port 
is  one  and  the  same  voyage,  whether 
the  destination  be  ulterior  or  direct, 
and  whether  with  or  without  the 
interposition  of  one  or  more  inter- 
mediate ports,  and  whether  to  be 
performed  by  one  vessel  or  by  sev- 
eral employed  in  the  same  trans- 
action and  in  the  accomplishment 
of  the  same  purpose." — The  Ber- 
7inida,  3  Wallace,  514.  "A  Brit- 
ish vessel  captured  during  the  re- 
bellion and  our  blockade  of  the 
southern  coast,  by  an  American  war 
steamer,  on  her  way  from  England 
to  Nassau,  N.  P.,  condemned  as 
intending  to  run  the  blockade ; 
Nassau  being  a  port  which,  though 
neutral  within  the  definition  fur- 
nished by  international  law,  was 
constantly  and  notoriously  used  as 
a  port  of  call  and  transshipment  by 
persons  engaged  in  systematic  vio- 
lations of  blockade,  and  in  the  con- 


veyance of  contraband  of  war  ;  the 
vessel  and  cargo  being  consigned 
to  a  house  well  known,  from  pre- 
vious suits,  to  the  court  as  so  en- 
gaged ;  the  second  officer  of  the 
vessel,  and  several  of  the  seamen, 
examined  zn  preparatorio,  testify- 
ing strongly  that  the  purpose  of 
the  vessel  was  to  break  the  block- 
ade ;  and  the  owner,  who  was  heard, 
on  leave  given  to  him  to  take  fur- 
ther proof  touching  the  use  he  in- 
tended to  make  of  the  steamer  after 
arrival  in  Nassau,  and  in  what  trade 
or  business  he  intended  she  should 
be  engaged,  and  for  what  purpose 
she  was  going  to  that  port,  saving 
and  showingnothingatall  on  thos 
points."  —  The  Pearl,  5  Wallace, 
574- 

'  Dahlgren,  Int.  Law,  p.  54  ;  Up- 
ton, p.  287 ;  Hall,  §  263.  "The  liabil- 
ity to  confiscation,  which  attaches 
to  a  vessel  that  has  contracted  guilt 
by  breach  of  blockade,  does  not  at- 
tach to  her  longer  than  until  the 
end  of  her  return  voyage." — The 
Wren,  6  Wallace,  582;  the  Weel- 
vaard  Van  Pillaw,  2  Rob.  Adm. 
Rep.  p.  128  ;  the  Lisette,  6  Ibid.  p. 
387- 


BLOCKADE— BREACH  OF  BLOCKADE 


477 


with  the  port  is  revived  in  favor  of  neutrals,  and  continues  to 
exist  until  the  blockade  is  formally  and  effectively  re-estab- 
lished.' 

If  the  vessels  of  a  blockading  squadron  are  dispersed  by  a 
storm,  the  binding  character  of  the  blockade  undergoes  no 
change.  The  vessels  of  the  squadron  return  to  their  stations, 
the  blockade  is  resumed  without  notice,  and  neutral  vessels 
approach  at  their  peril." 

Pacific  Blockade.  The  right  to  establish  what  is  called  a 
pacific  blockade  has  been  asserted  on  several  occasions  since 
the  beginning  of  this  century.  It  has  never  been  regarded 
as  a  war  measure;  nor  does  it  resemble,  except  in  name,  the 
belligerent  right  of  blockade  which  is  sanctioned  by  inter- 
national law.  Pacific  blockades  have  always  been  made  the 
subject  of  protest  by  neutrals,  as  unduly  interfering  with  neu- 


'  "  A  public  blockade — that  is  to 
say,  a  blockade  regularly  notified 
to  neutral  governments,  and,  as 
such,  distinguished  from  a  simple 
blockade,  or  such  as  may  be  estab- 
lished by  a  naval  officer  acting  on 
his  own  discretion  or  under  direc- 
tion of  his  superiors — must,  in  the 
absence  of  clear  proof  of  a  discon- 
tinuance of  it,  be  presumed  to  con- 
tinue until  notification  is  given  by 
the  blockading  government  of  such 
discontinuance." — The  Circassian, 
2  Wallace,  135.  V  Calvo,  §§  2870- 
2879;  Hall,  §  261;  III  Phiilimore, 
§295;  II  Ortolan,  p.  344;  II  Fer- 
guson, §  280;  Dana's  Wheaton,  § 
513,  note  233.  "  The  occupation  of 
a  city  by  a  blockading  belligerent 
does  not  terminate  a  public  block- 
ade of  it  previously  existing,  the 
city  itself  being  hostile,  the  oppos- 
ing enemy  in  the  neighborhood, 
and  the  occupation  limited,  recent, 
and  subject  to  the  vicissitudes  of 
war.  Still  less  does  it  terminate  a 
blockade  proclaimed  and  main- 
tained not  only  against  that  city, 
but  against  the  port  and  district 


commercially  dependent  upon  it 
and  blockaded  by  its  blockade." — 
The  Circassian,  2  Wallace,  135. 
"  The  blockade  of  the  coast  of 
Louisiana,  as  established  there,  as 
on  the  rest  of  the  coast  of  the 
Southern  States  generally  by  the 
proclamation  of  April  19,  18G1 
(12  Stat.  1258),  was  not  terminat- 
ed by  the  capture  of  the  forts  be- 
low New  Orleans  in  April,  1862, 
by  Commodore  Farragut,  and  the 
occupation  of  the  city  by  General 
Butler  on  May  6,  1862,  and  the 
proclamation  of  the  President  of 
May  12,  1862  (12  Stat.  1263),  de- 
claring that  after  June  ist  the 
blockade  of  the  port  of  New  Or- 
leans sliould  cease.  Hence  it  re- 
mained in  force  at  Calcasieu,  on 
the  west  extremity  of  the  coast  of 
Louisiana,  as  before." — The  Bai- 
^tfrrj',  2  Wallace, 474;  the  Triheteti, 
6  Robinson,  65 ;  the  Hoffnting, 
Ibid.  387. 

'V  Calvo,  §2871;  III  Phiilimore. 
§  294;  the  Columbia,  i  Rob.  Adm. 
Rep.  p.  154. 


478  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

tral  trade.  That  such  an  operation  is  not  a  war  measure  is 
shown  by  the  action  of  prize-courts  in  "refusing  to  condemn 
as  prize  because  war  did  not  exist.'"  It  must,  therefore,  be 
regarded  as  a  measure  falling  short  of  war,  and  must  be  jus- 
tified, in  any  particular  case,  by  the  injury  suffered  by  the 
state  which  resorts  to  it  as  a  measure  of  obtaining  redress. 
The  first  instance  of  such  a  blockade  was  that  declared  by 
England,  Russia,  and  France  against  the  Greek  ports  of  Tur- 
key in  1827.  Others  were  declared  by  England  and  France 
against  the  Argentine  Republic  in  1838,  and  by  France 
against  Mexico  in  1837.  The  former  of  these  was  maintained 
for  ten  years,  the  latter  for  less  than  two,  terminating  with 
the  capture  of  the  castle  of  San  Juan  de  Ulloa  in  1838.'' 


References.  For  adiscussion  of  this  subject,  see  Hall,  chap.  viii. ;  Boyd's 
Wheaton,  §§  509-523;  Bluntschli,  §§  827-840;  Lawrence,  "International 
Law,"  §§  269-276;  II  Halleck,  chap.  xxv. ;  Manning,  bk.  v.  chap.  ix. ; 
II  Wildman,  pp.  178-210;  Dahlgren,  pp.  25-65,  129-142;  Woolsey,  §§ 
202-207;  Nys,  "  La  Guerre  Maritime,"  chap,  iv.;  Glass,  "Marine  Inter- 
national Law,"  pp.  423-462;  V  Calvo,  §§  2827-2938;  II  Ferguson,  §§ 
269-281;  III  Phillimore,  pp.  473-521;  II  Twiss,  §§  98-120;  Risley,  pp. 
239-248;  Dana's  Wheaton,  §§  509-524,  notes  232-235;  II  G.  F.  De 
Martens,  §  320;  Kliiber,  §§  297,  298;  Hefifter,  pp.  289-294;  Hautefeuille, 
"  Droits  des  Nations  Neutres,"  vol.  ii.  pp.  189-272 ;  Ortolan,  "  Diplomatic 
de  la  Mer,"  and  Wheaton's  "  History,"  etc.  pp.  137-144.  See,  also,  the 
valuable  notes  on  this  subject,  under  the  title  "  Blockade,"  in  Dana's 
and  Lawrence's  editions  of  Wheaton. 

'  Dahlgren,  Int.  Law,  p.  27.  Conflict  of  International  Rights." 

*  See  the  title  "  Pacific  Block-  See,  also,  vol.  xix.  Revue  de  Droit 
ades"  in  the  chapter  entitled  "The     Int.  pp.  245,  377. 


CHAPTER  XV 

THE    RIGHT   OF   SEARCH 

Nature  of  the  Right.  The  belligerent  rights  which  have 
already  been  discussed  —  of  capturing  enemy  property  at  sea, 
of  seizing  contraband  of  war,  and  of  blockading  the  coasts  and 
harbors  of  an  enemy  —  could  none  of  them  be  made  effective 
were  not  belligerents  also  accorded  the  right  to  stop  and  search 
all  neutral  merchant  vessels  on  the  high  seas,  for  the  purpose 
of  ascertaining  their  nationality  and  destination,  the  character 
and  ownership  of  their  cargoes,  and  to  effect  their  capture, 
should  the  result  of  such  examination  show  a  liability  to  capt- 
ure to  exist.' 

When  and  Where  Exercised.  The  right  to  stop  and  examine 
neutral  vessels  on  the  high  seas  is  called  the  belligerent  right 
of  search.  It  comes  into  existence  at  the  outbreak  of  war,  and 
is  terminated  by  the  treaty  of  peace.  Neutral  merchant  ves- 
sels, of  whatsoever  character,  are  subject  to  its  exercise,  and 
must  submit  to  search  when  required  to  do  so,  in  time  of  war, 
by  a  properly  documented  armed  vessel  of  either  belligerent. 
If  they  refuse,  or  resist,  they  are  subject  to  seizure  and  con- 
demnation. If  the  right  be  exercised  by  a  belligerent  in  a 
manner  not  warranted  by  the  law  of  nations,  or  in  violation 
of  the  terms  of  a  treaty,  the  remed)/  must  be  sought  through 
the  neutral  government  under  whose  flag  the  ship  sails.     As 

'II   Halleck,  pp.  267,  268;    the  523,524;    II  Twiss,  p.  177;  Vattel, 

Maria,  i  Rob.  Adm.  Rep.  p.  360;  liv.  iii.  chap.  vii.  §§  111-116;  Bello, 

the  Antelope,  10  Wheaton,  66 ;  the  Derecholnternacional.partii.chap. 

Amia  Maria,  2  Ibid.  327;   II  Or-  viii.  §  10  ;  Z.?  Louis,  2  Dod.  Adm. 

rtolan,  liv.  iii.  chap.  vii. ;    Pistoye  Rep.    p.    210;    vol.  xix.   Revue  de 

et    Duverdy,    tit.    v.   chap.    i.  ;    1  Droit.  Int.  p.  367  ;  vol.  xx.  Ibid.  pp. 

Kent,  p.  153;    III  Phillimore,  pp.  349,487. 


480  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

to  place,  the  right  of  search  may  be  exercised  wherever  a 
capture  may  lawfully  be  made — /.  e.,  on  the  high  seas  or 
within  the  territorial  waters  of  either  belligerent,  but  never 
in  neutral  waters.' 

Hoiv  Exercised.  The  manner  in  which  the  belligerent  right 
of  search  is  to  be  exercised  is  determined  by  the  usage  of  na- 
tions, except  in  those  cases  in  which  it  has  been  made  the 
subject  of  treaty  stipulation.  Many  such  treaties  are  in  ex- 
istence, and  they  specify,  in  considerable  detail,  the  manner 
in  which  the  search  shall  be  conducted  by  war-ships  carrying 
the  fllags  of  the  signatory  powers.  The  duty  of  submitting  is 
only  incumbent  upon  neutral  merchant  vessels.  Public  armed 
vessels  are  not  subject  to  visitation,  either  in  time  of  peace  or 
war,  and  the  merchant  vessels  of  a  belligerent  are  justified  in 
resorting  to  any  measures,  either  of  flight,  resistance,  or  de- 
ception, which  are  calculated  to  enable  them  to  escape  search 
and  inevitable  capture.  The  right  of  search  may  be  exercised 
by  the  regularly  commissioned  ships-of-war  of  a  belligerent, 
or  by  duly  authorized  privateers  in  the  service  of  those  states 
which  still  retain  the  right  to  use  that  species  of  naval  force 
in  time  of  war.* 

'Hall,  §270;  III  Phillimore,  pp.  tainforexamination  isaright  which 
522-525,  530-533;  II  Twiss,  pp.  a  belligerent  may  exercise  over 
176,  177;  II  Ferguson,  §  237;  II  every  vessel,  except  a  national  ves- 
Ortolan,  liv.  iii.  chap.  vii.  "The  sel,  which  he  meets  with  on  the 
right  of  search  is  not  a  right  ocean.  The  principal  right  neces- 
wantonly  to  vex  or  control  neu-  sarily  carries  with  it  all  the  means 
tral  commerce  or  indulge  in  idle  essential  to  its  exercise ;  among 
curiosity.  It  is  a  right  growing  out  these  may  sometimes  be  included 
of,  and  ancillary  to,  the  greater  the  assumption  of  the  disguise  of  a 
right  of  capture,  and  can  never  friend  or  an  enemy,  which  is  law- 
arise  except  as  a  means  to  that  ful  stratagem  of  war." — The  Elea- 
end." — Tlie  Nereide.  9  Cranch,  388  twr,  1  Wheaton,  345  ;  the  Antelope, 
{427].     "The right  of  visitation  and  10  Ibid.  66. 

search  is  a  belligerent  right  which  ^  II  Twiss,  pp.  176,  177  ;  Hall,  § 

cannot  be  drawn  into  question,  but  273;   III  Phillimore,  pp.  536-542  ; 

must  be  conducted  with  as  much  the  Mariana  Fio?-a,  11  Wheaton, 

regard  to  the  safety  of  the  vessel  i ;    II   Ortolan,  liv.  iii.  chap.  vii. ; 

detained   as  is    consistent  with   a  II  Ferguson,  §  238  ;  vol.  xix.  Revue 

thorough  examination  of  her  char-  de  Droit  Int.  p.  367;  vol.  xx.  Ibid, 

acter   and    voyage." — The    Awi:^  op.  349,487. 
Maria,  1  Wheaton,  327.     "  To  de- 


THE   RIGHT  OF   SEARCH  48 1 

Under  ordinary  circumstances,  a  man-of-war,  in  executing 
the  right  of  search,  hoists  its  national  color,  and  fires  an  un- 
shotted  gun,  as  a  signal  to  heave  to.  This  is  called  the  coup 
d'assnrance,  or  afifirming  gun  ;  and  it  is  the  duty  of  the  neutral 
ship,  on  receiving  this  signal,  to  heave  to  at  once  and  hoist 
her  proper  national  flag.  Should  the  signal  not  be  obeyed, 
and  should  the  failure  to  obey  indicate  an  intention  to  resist 
search,  the  belligerent  cruiser  is  justified  in  resorting  to  such 
measures  of  force  as  will  compel  obedience  to  its  summons. 
An  attempt  at  flight,  unaccompanied  by  resistance,  has  been 
held  not  to  involve  the  ship  making  it  in  the  penalty  for  re- 
sisting search.* 

The  distance  at  which  the  searching  vessel  shall  remain  is 
determined  by  the  judgment  of  her  commanding  officer,  based 
upon  the  circumstances  of  wind  and  tide,  upon  the  character 
of  the  vessel  to  be  searched,  and  the  necessity  of  remaining 
within  easy  supporting  distance  of  the  boat's  crew  by  whom 
the  search  is  carried  on.  The  distance  at  which  a  man-of-war 
shall  remain,  when  not  regulated  by  treaty,  is  now  a  matter  of 
but  little  importance.  It  was  not  so,  however,  in  former  times, 
when  the  right  of  search  was  executed  by  privateers,  whose 
methods  of  search  and  capture  were  not  above  suspicion,  and 
when  piracy  was  a  crime  of  much  more  frequent  occurrence 
than  at  present.* 

Duty  of  Boarding  Party.  An  ofificer  is  sent  on  board  to 
conduct  the  search.  He  is  accompanied  by  a  boat's  crew, 
and  by  one  or  two  persons  to  assist  him  in  the  performance 
of  his  duty.     The  purpose  of  the  search  may  be  : 

'  II  Twiss,  pp.  180-183  ;  III  Phil-  for  examination  is  a  right  which  a 

limore,  pp.  537-541  ;  the  Mariana  belHgerent  may  exercise  over  every 

Flora,  II   Wheaton,    42;    II    Fer-  vessel,  except    a    national   vessel, 

guson,  §   238;  II   Ortolan,  liv.  iii.  which  he  meets  on  the  ocean." — ■ 

chap.  vii.  p.   249;  II  Halleck,  pp.  The  iTAvz^^r,  2  Wheaton,  345.  "The 

285-287  ;   Hall,  §§  270-277  ;   Snow,  principal   right  carries  with  it  all 

pp.  159-162;  Glass,  pp.  155-164.  the  means  essential  to  its  exercise; 

'"Thelimitation  as  to  the  strength  among   these  may   sometimes   be 

of  the  search  -  party  can  be  traced  included    the    assumption    of   the 

to  a  similar  origin,  and,   like  the  disguise  of  a  friend  or  an  enemy, 

former,  is  now  less  strongly  insist-  which  is  a  lawful  stratagem  of  war." 

ed  upon  than  formerly.    To  detain  —Ibid. 
31 


482      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

{a.)  To  ascertain  from  the  ship's  papers  the  nationality  and 
destination  of  the  vessel. 

{b.)  To  ascertain  from  the  same  source  the  character  and 
destination  of  the  cargo. 

{c.)  When  the  papers  do  not  contain  satisfactory  informa- 
tion as  to  the  character  and  destination  of  the  ship  and  cargo, 
to  ascertain  those  facts  by  actual  inspection.' 

If  the  ship's  papers  are  in  regular  form,  and  show  a  bona 
fide  neutral  origin  and  destination  of  ship  and  cargo,  the  fact 
of  the  search  having  been  made  is  noted  upon  them  by  en- 
dorsement, the  search-party  retires,  and  the  vessel  is  allowed 
to  proceed  on  its  voyage. 

If  the  papers  indicate  a  hostile  destination,  the  manifests, 
invoices,  and  bills  of  lading  are  examined,  to  ascertain  whether 
there  are  contraband  articles  on  board.  If  such  be  found,  or 
if  the  vessel  be  destined  to  a  blockaded  port,  the  ship  is  de- 
clared a  prize,  her  papers  are  sealed,  and  she  is  sent  into  port 
under  a  prize -master  for  adjudication.  A  similar  course  is 
pursued  if  there  is  sufficient  ground  for  believing  that  her 
papers  are  false,  if  any  of  them  are  concealed  or  have  been 
destroyed  with  a  view  to  evade  examJnation,  or  if  spoliation 
has  been  practised.^ 

Release  of  Vessel  on  Siirrender  of  Contraband  Cargo.  A  prac- 
tice has  obtained  to  some  extent  of  releasing  a  neutral  ship 
and  allowing  it  to  continue  its  voyage  on  condition  that  the 
contraband  part  of  the  cargo  be  surrendered.  This  method 
of  procedure  is  irregular,  without  warrant  of  law,  and  is  like- 
ly to  lead  to  serious  complications.  The  captor,  by  assuming 
some  of  its  functions,  greatly  embarrasses  the  proper  prize- 
court  in  its  action  upon  the  captured  property.  The  ship's 
papers,  which  in  most  cases  constitute  all  the  evidence  upon 
which  the  court  bases  its  decree,  remain  with  the  neutral  ves- 
sel, and  the  court  is  obliged  to  proceed  in  the  case  without 

'  DahlgrenJnt.Law,  p.  100;  Snow,  ton,  262;  I  Pistoye  et  Duverdy,  p. 

pp.  1 59-161;  Glass,  pp.  158-162  ;  III  237;  Annuaire,  Inst,  de  Droit  Int. 

Dig.  Int.  Law,  §  325.  1883,  p.  214;    III   Phillimore,  pp. 

'  Hall,  §  273 ;  the  Eleanor,  2Whea-  533-536. 


THE   RIGHT   OF   SEARCH  483 

sufficient  information.  The  master,  under  his  general  author- 
ity as  such,  cannot  effect  a  legal  surrender  of  a  portion  of  his 
cargo  in  such  a  way  as  to  bind  the  owners.  His  action,  there- 
fore, in  a  doubtful  case,  leaves  to  the  owners  .the  right  of 
demanding  through  their  government  the  restoration  of  the 
surrendered  cargo.  For  these  reasons  the  practice  should  not 
be  resorted  to  unless  authorized  by  treaty,  or  unless  the  owner, 
either  personally  or  by  his  duly  authorized  representative,  gives 
a  legal  consent  to  the  proposed  surrender.' 

Resistance  to  Search  or  Capture.  The  right  to  evade 
search  or  to  resist  capture  depends  upon  the  nationality  of 
the  ship  upon  which  such  right  is  attempted  to  be  exercised. 
As  the  merchant  vessel  of  a  belligerent  and  any  property  of 
the  enemy  which  it  carries  are  alike  subject  to  capture,  the 
penalty  of  condemnation  is  not  increased  or  affected  by  re- 
sistance or  evasion ;  an  enemy's  merchant  ship  may  therefore 
resist,  or  may  resort  to  fraud,  deceit,  or  stratagem  in  order  to 
evade  search  or  avoid  capture.^  In  respect  to  neutral  ships, 
however,  the  matter  rests  upon  quite  a  different  basis.  The 
existence  of  the  riglit  of  search  on  the  part  of  the  belligerents 
implies  the  existence  of  a  corresponding  duty  of  submission 
on  the  part  of  the  neutral.  A  neutral  merchant  ship  is,  there- 
fore, bound  to  submit  to  search,  in  time  of  war,  upon  the  de- 
mand of  a  public  armed  vessel  or  a  lawfully  commissioned 
cruiser  of  either  belligerent ;  if  resistance  be  attempted,  or  if 
fraud,  deceit,  or  spoliation  be  resorted  to,  the  effect  will  be  to 
cause  the  condemnation  of  the  property  so  withdrawn  from 
search  or  examination.  The  belligerent  is  also  authorized,  in 
the  event  of  resistance,  to  use  such  force  as  will  enable  him  to 
execute  the  search  or  to  effect  the  capture.' 

•  Dana's  Wheaton,  p.  665,  note.  Bluntschli,  §§  819-826;    Glass,  p. 

See,  also,  note  i,  p.  456,  ante.  164;  the  Maria,  I  Rob.  Adm.  Rep. 

^  The  Catharina  Elizabeth,  5  Rob.  p.  375  :  the  Despatch,  3  Ibid.  p.  279 ; 

Adm.  Rep.  p.  232.  the £/sat>e,  4  Ibid.  p. 408 ;  the  Piiris- 

MI  Halleck,  p.   287;    Snow,  pp.  sima  Concepcion,  5  Ibid.  p.  33;  the 

1 59-161  ;  II  Ortolan,  pp.  259,  260  ;  Fanny,  i  Dodson,  Ibid.  p.  448;  the 

Hall,  §§275,  276;  V  Calvo,§§  2961-  Topaz,  2  Acton,   Ibid.   p.  20;   the 

2968;  in  Phillimore,  §§  336-340;  Short  Staple,  9   Cranch,    55;  the 


484  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

The  Right  of  Convoy.  At  a  time  when  the  rules  of  mari- 
time  capture  were  rigidly,  and  at  times  harshly  and  unjustly, 
enforced,  it  is  not  remarkable  that  neutrals  should  have  sought 
to  mitigate  their  severity  by  advocating  methods  which,  while 
securing  to  belligerents  their  existing  rights,  were  also  calcu- 
lated to  relieve  neutral  commerce  from  some  of  the  burdens 
to  which  it  was  exposed  in  war.  The  most  important  attempt 
of  this  kind  was  that  originated  by  the  Baltic  powers  towards 
the  close  of  the  last  century,  which  has  become  known  as  the 
right  of  convoy.  It  was  contended,  in  behalf  of  those  powers, 
that  the  presence  of  a  public  armed  vessel,  with  a  fleet  of  neu- 
tral merchant  ships,  was  suflficient  to  exempt  them  from  search 
upon  proper  assurance  being  given,  by  the  commanding  ofificer 
of  the  armed  vessel,  that  the  ships  under  his  convoy  contained 
neither  enemy  goods  nor  contraband  of  war.  In  this  form  the 
right  was  first  asserted  by  Sweden,  and  later  by  Holland,  in 
the  seventeenth  century.  The  latter  power,  however,  upon 
becoming  a  belligerent,  changed  its  policy,  and  refused  to  rec- 
ognize a  practice  for  which  it  had  formerly  contended  as  a 
neutral.  Renewed  interest  was  shown  in  the  subject  between 
the  years  1780  and  1800,  during  which  period  several  treaties 
were  entered  into,  chiefly  by  the  Baltic  powers,  stipulating  for 
the  exemption  from  search  of  neutral  vessels  under  neutral 
convoy.* 

Nereide,  Ibid.  388;  the  Atlanta,  3  violated  by  such  an  act  on  his  part 

Wheaton,  409.     "\[  2i  neutral  m^%-  — lupicm  aicribus  teneo — and  if  he 

ter  attempts  a  rescue,  he  violates  can  withdraw  himself,  he  has  a  right 

a  duty  which  is  imposed  upon  him  to  do  so." — The    Catharina  Eliza- 

by  the  law  of  nations,  to  submit  to  beth,  5  Rob.  Adm.  Rep.  p.  232. 
come  in  for  inquiry  as  to  the  prop-  '  "  The  first  and  great  object  of  the 

erty  of  the  ship  or  cargo  ;  and   if  attention  of  an  officer  appointed  to 

he  violates  that  obligation  by  a  re-  a  service  of  this  kind  is  the  care  of 

currence  to  force,  the  consequence  his  convoy.    He  is  not  at  liberty  to 

will  undoubtedly  reach  the  property  desert  it  for  the  purpose  of  acquir- 

of  his  owner;  and  it  would,  I  think,  ing  any  advantage  to  himself,  nor 

extend  also  to  the  confiscation  of  is  he  to  volunteer  any  attack  upon 

the  whole  cargo  intrusted   to  his  the  enemy,  if  it  takes  him   away 

care,  and  thus  fraudulently  attempt-  from  his  first  great  duty.     But,  as 

ed  to  be  withdrawn  from  the  rights  far  as  consistent  with  that  duty,  he 

of  war.     With  an  ,?;?,?;;zy  master  the  may  pursue  his  own   interest,  and 

case  is  very  different.     No  duty  is  may  attack  and  annoy  the  enemy 


THE    RIGHT    OF    SEARCH  485 

The  introduction  of  the  new  rule  was  vigorously  opposed 
by  Great  Britain,  a  power  at  that  time  more  interested  than 
any  other  in  the  maintenance  of  belligerent  rights  at  sea.  The 
position  assumed  by  that  government  was,  in  substance,  stated 
by  Sir  William  Scott,  in  the  case  of  the  Maria,  and  may  be 
summarized  as  follows : 

(<7.)  The  laws  of  maritime  capture  give  to  a  belligerent  an 
incontestable  right  to  stop  and  search,  on  the  high  seas,  all 
neutral  merchant  vessels. 

(<^.)  A  search,  to  be  lawful,  must  be  exercised  directly  by 
the  belligerent  cruiser,  a  separate  search  being  made  in  the 
case  of  each  neutral  vessel  encountered. 

(<:.)  A  neutral  government  cannot  interpose  its  authority 
between  a  belligerent  armed  vessel  and  a  neutral  merchant 
ship,  by  giving  to  one  of  its  public  vessels  instructions  which 
are  calculated  to  abridge,  in  any  manner,  the  belligerent  right 
of  search. 

(^.)  The  resistance  of  a  convoying  ship  amounts,  in  effect, 
to  resistance  to  search  on  the  part  of  the  merchant  vessels  com- 
posing the  convoy,  and  involves  them  in  the  penalty  of  con- 
demnation for  such  resistance  of  search.' 

As  England  was  at  that  time  sufficiently  powerful  at  sea  to 
maintain  its  view  against  the  opposition  of  any  existing  state, 
the  neutral  powers  regarded  the  emergency  as  one  of  such  im- 
portance  as  to  seriously  threaten  the  very  existence  of  their 
commerce.  To  protect  their  menaced  interests,  a  treaty  was 
negotiated  which  created  the  defensive  alliance  known  as  the 
Armed  Neutrality  of  1800,  the  purpose  of  which  was  to  main- 
tain the  principle  of  convoy  as  described  in  the  treaty.  In 
1 801,  however,  Russia,  though  a  party  to  the  Armed  Neu- 
trality, entered  into  an  agreement  recognizing  the  right  of  a 
belligerent  to  visit  neutral  merchant  vessels   sailing  under  a 

in  anyway  that  may  appear  to  him  care,  and  may  take  tlie  benefit  of  the 

advantageous.      He   may   capture  prizes  which  he  may  have  the  good- 

the  ships  and  goods  of  the  enemy,  fortune  to  make."  —  The  Galen,  i 

provided    he    does  not    withdraw  Dodson,  430. 

himself  from  the  duty  of  protect-  '  The  Maria,  i  Rob.  Adm.  Rep. 

ing  the  vessels  placed  under  his  p.  340;  see,  also,  note  3,  p.  483,  a«/^. 


486      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

convoy;  and  the  constantly  increasing  maritime  power  of  Eng- 
land sufficed  to  defer  indefinitely  the  general  adoption  of  the 
principle  of  convoy  as  a  rule  of  international  law.  Since  the 
beginning  of  this  century  the  right  has  been  stipulated  for  in 
a  number  of  treaties,  to  which  the  Continental  states  of  Europe 
have  been  parties.  England  alone  refuses  to  recognize  the 
right,  even  as  a  part  of  the  conventional  law  of  nations,  as  she 
has  ever  denied  its  existence  as  a  custom  based  upon  general 
international  usage." 

The  views  held  as  to  the  right  of  convoy  by  the  different 
departments  of  the  United  States  Government  have  been  at 
considerable  variance.  The  political  departments  have  uni- 
formly recognized  its  existence,  and  have  endeavored  to  secure 
its  general  acceptance  by  treaty.  The  United  States  Navy 
Regulations  provide  in  considerable  detail  for  the  manner  in 
which  the  right  of  convoy  shall  be  exercised  by  its  public  armed 
vessels.  If  the  convoyed  vessel  is  bound  to  a  belligerent  port 
the  commander  of  the  convoy  is  to  require  proof  that  there  are 
no  contraband  articles  on  board;  and  without  such  proof  he  is 
not  to  afford  her  protection  against  a  belligerent  cruiser,  unless 
specially  directed  to  do  so;  "he  is  not  to  permit  the  vessels 
under  his  protection  to  be  searched  or  detained  by  any  bel- 
ligerent cruiser."  '^  The  judicial  department,  on  the  other  hand, 
has  followed  the  English  precedents  in  denying  the  existence 
of  the  right  of  convoy  as  a  rule  or  principle  of  international 
law.^ 

At  the  present  time  it  is  not  believed  that  any  serious  ob- 
jection would  be  offered  by  any  modern  state  to  the  general 
adoption  of  the  principle  of  convoy  as  a  rule  of  international 
law,  under  such  restrictions  as  would  be  calculated  to  prevent 
abuse,  and  accompanied  by  such  conditions  as  would  secure  to 
belligerents  a  right  as  effective  as  that  which  they  now  enjoy. 

'  Hall,  §272;  II  Halleck,  pp.  291-  the  Maria,  i   Rob.  Adm.  Rep.  p. 

295;  Boyd's  Wheaton,  §§  525-537;  340. 

Ill  Phillimore,  pp.  544-558;  II  Or-  "^  Par.  410,  Navy  Regulations  of 

tolan,  liv.  iii.  chap.  vii.  pp.  261-282 ;  the  United  States,  1896 ;  Snow,  pp. 

Dana's  Wheaton,  §  526,  note  242;  160,  161;  Glass,  pp.  165-168. 

I  Kent  (Holmes's  ed.),  pp.  153-156  ;  Mil  Dig.  Int.  Law,  §  346. 


THE    RIGHT   OF   SEARCH  487 

That  such  a  rule  has  not  been  adopted,  or  seriously  advocated, 
is  doubtless  due  to  the  fact  that  the  necessity  for  its  existence 
has  passed  away.  The  introduction  of  steam  navigation  in- 
volved an  immediate  and  radical  reorganization  of  the  carrying 
trade  of  the  world.  The  establishment  of  steamship  lines,  upon 
the  old  routes  of  commerce,  has  monopolized  a  trade  which 
was  formerly  carried  on  in  sailing  vessels,  and  it  is  no  longer 
regarded  as  desirable  that  even  sailing  vessels,  in  time  of  war, 
should  move  in  fleets  or  convoys. 

Searches  Authorized  in  Time  of  Peace.  The  right  of 
search  has  been  shown  to  be  a  belligerent  right,  and  so  exist- 
ent only  in  time  of  war.  In  time  of  peace  a  right  of  visitation 
or  search  is  recognized  in  the  following  cases: 

{a.)  Search  to  Execute  Revenue  Lazus.  Merchant  vessels 
coming  into  the  jurisdiction  of  a  state  are  subject  to  such  in- 
spection, and  their  cargoes  to  such  examination  and  search,  as 
are  warranted  by  the  municipal  laws  of  that  state,  or  are  neces^ 
sary  to  the  enforcement  of  its  sanitary  and  customs  regulations. 
A  vessel  which  attempts  to  evade  such  inspection,  at  any  time 
during  its  sojourn,  may  be  detained  and  subjected  to  such 
penalties  as  are  authorized  by  the  laws  of  the  offended  state. 
It  is  questionable  whether  the  right  exists  of  pursuing  such 
vessels  upon  the  high  seas,  and  of  effecting  their  capture  beyond 
the  jurisdictional  waters  of  the  captor's  state.'  If  such  right 
exists  at  all,  it  is  based  upon  international  comity,  and,  in  any 
particular  case,  its  exercise  must  be  justified  by  the  emergency 
existing,  in  which  event  the  government  to  which  the  offending 

'  Dana's  Wheaton,§  179,  note  108;  ters,  to  go  on  board  of  vessels  in 
the  Louis,  2  Dodson,  Adm.  Rep.  p.  any  port  of  the  United  States,  or 
246;  the  Hovering  Acts  (1736),  9  within  four  leagues  of  the  coast 
Geo.  II.  chap.  xxxv. ;  Vattel,  liv.  i.  thereof,  if  bound  to  the  United 
chap,  xxiii.  §  281  ;  Church  vs.  Hub-  States,  whether  in  or  out  of  their 
bard,  2  Cranch,  187.  The  prac-  respective  districts,  for  the  pur- 
tice  of  the  United  States  in  this  poses  of  demanding  the  manifests, 
regard  is  regulated  by  the  require-  and  of  examining  and  searching 
ments  of  section  3067  of  the  Re-  the  vessels;  and  those  officers  re- 
vised Statutes,  which  provides  that  spectively  shall  have  free  access  to 
"it  shall  be  lawful  for  all  collectors,  the  cabin  and  every  other  part  of 
naval  officers,  surveyors,  inspectors,  a  vessel." 
and  the  officers  of  the  revenue-cut- 


488  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

vessel  belongs  may,  and  usually  does,  waive  its  strict  rights  in 
the  premises,  and  declines  to  protect  its  subjects  in  wrong- 
doing.' 

{b.)  Search  o)i  Suspicion  of  Piracy.  Public  armed  vessels  of 
any  state  are  justified,  when  reasonable  grounds  of  suspicion 
exist,  in  stopping  vessels  on  the  high  seas  which  are  believed 
to  be  engaged  in  piratical  undertakings.  If  the  search  be  made 
in  good  faith,  and  upon  grounds  warranting  a  suspicion  of 
piracy,  no  claim  for  damage  can  be  established,  even  in  cases 
where  the  character  of  the  ship  visited  proves  to  be  legitimate.-* 

(<:.)  Search  of  Merchant  Ships  by  War  Vessels  of  the  same 
State.  The  public  armed  vessels  of  a  state  may  execute  such 
visits  of  search  and  inspection,  upon  merchant  vessels  of  the 
same  nationality,  as  are  authorized  by  the  laws  of  the  state 
under  whose  flag  they  sail.  This  is  a  question  of  municipal 
law  pure  and  simple,  and  the  search  authorized  may  be  as 
frequent  or  infrequent,  as  lax  or  as  vigorous,  as  is  deemed  best 
by  the  government  to  which  both  vessels  belong. 

{d.)  Right  of  Approach  to  Verify  Nationality.  Public  armed 
vessels,  of  whatever  nationality,  are  also  authorized  to  approach 
merchant  vessels  on  the  high  seas  for  the  purpose  of  ascertain- 
ing their  nationality.  In  the  performance  of  this  duty,  except 
where  suspicion  of  piracy  exists,  they  are  limited  to  hailing 
and  the  use  of  flags  and  signals.  They  board  such  vessels  at 
their  peril.^ 


'  II  Halleck,  p.  270;  Risley,  p.  47 
Dana's  Wheaton,  §  124,  note  83 
III  Dig.  Int.  Law,  §  326;  Hall,  § 


Ibid.  "The  municipal  laws  of  one 
nation  do  not  extend  in  their  oper- 
ation beyond  its  own  territory,  ex- 


Woolsey,  §  213.  "Nations  may  cept  as  regards  its  own  citizens, 
prevent  the  violation  of  their  laws  A  seizure  for  the  breach  of  the 
by  seizures  on  the  high  seas,  in  the  municipal  laws  of  one  nation  can- 
neighborhood  of  their  coasts,  and  not  be  made  within  the  territory  of 
there  is  no  fixed  rule  prescribing  another."  — The  Apollon,  9  Whea- 
the  distance  from  the  coast  within  ton,  362. 

which  such  seizures  may  be  made."         ^  Hall,  §   81;   I   Calvo,  §  508;   II 

— Church  vs.  Hubbard,  2  Cranch,  Halleck,  pp.  273,  274;  Bluntschli, 

187.      "To  come   within   such    an  §§  343-350;  I  Dig.  Int.  Law,  §§  33, 

exception,  the  seizure  must  be  jus-  33a,  50a;  III  Ibid.  §  326. 
tifiable    under    the    laws    of    the  ^  III  Phillimore,  pp.  524.525;    I 

country    making    the    seizure." —  Ortolan,  liv.  ii.  chap.  xii. ;  II  Twiss, 


THE   RIGHT  OF  SEARCH 


489 


Case  of  the  "  Virgmius."  The  question  of  search  in  peace  is 
illustrated  by  the  case  of  the  Virginhts.  The  Virginius  was  a 
steamer  which  had  been  specially  constructed  in  England, 
with  a  view  to  her  employment  as  a  blockade  runner.  While 
engaged  in  this  service  she  was  captured  by  one  of  the  United 
States  blockading  squadrons,  and  was  condemned  and  sold  for 
violation  of  blockade.  She  afterwards  came  into  possession 
of  the  United  States,  in  satisfaction  of  a  debt,  and  on  August 
2,  1870,  was  sold,  ostensibly  to  one  Patterson,  a  resident  of 
New  York.  At  this  sale  a  formal  certificate  of  registry  was 
issued,  giving  her  the  character  of  a  merchant  vessel  of  the 
United  States.  From  this  time  until  1873  she  was  engaged  in 
various  undertakings,  some  of  which  were  of  so  questionable  a 
character  as  to  have  involved  the  forfeiture  of  her  register,  had 
they  been  made  known  to  the  proper  authority.     No  complaint 


p.  179;  II  Halleck,  pp.  270-272; 
Woolsey,  §  213;  III  Dig.  Int.  Law, 
§  325;  the  Mariaiia  Flora,  11 
Wheaton,  i;  1  Kent,  p.  153,  note. 
"  Though  the  right  of  search  of 
foreign  vessels  does  not  exist  in 
time  of  peace,  yet  a  cruiser  has 
a  right  to  approach  for  purposes 
of  observation."  —  The  Mariana 
Flora,  II  Wheaton,  i.  "The  vessel 
approached  is  under  no  obligation 
to  lie  by,  but  neither  has  she  a  right 
to  fire  on  a  cruiser  approaching, 
upon  a  mere  conjecture  that  she  is 
a  pirate;  and  if  this  be  done,  the 
cruiser  may  lawfully  repel  force  by 
force  and  capture  her."  —  Ibid. 
"  There  is  no  obligation  to  afhrm 
a  flag  with  a  gun  by  an  American 
cruiser  in  time  of  peace."— Ibid. 
"  When  a  vessel  interrogated  at 
sea  answers  either  in  words  or  by 
hoisting  her  flag,  the  response  must 
be  taken  for  true,  and  she  must  be 
allowed  to  keep  her  way  ;  the  inter- 
rogator cannot  stop  her,  to  verify  it 
by  visitation,  search,  or  otherwise." 
—  IX  Opin.  Att.-Gen.  p.  455.  "A 
cruiser  of  one  nation  has  a  right  to 


know  the  national  character  of  any 
strange  ship  she  may  meet  at  sea, 
but  the  right  is  not  a  perfect  one, 
and  the  violation  of  it  cannot  be 
punished  by  capture  and  condem- 
nation, nor  even  by  detention."— 
Ibid.  "The  party  making  the  in- 
quiry must  raise  his  own  colors,  or 
in  some  other  way  make  himself 
fully  known,  before  he  can  lawfully 
demand  such  knowledge  from  the 
other  vessel." — Ibid.  "If  this  is 
refused,  the  inquiring  vessel  may 
fire  a  blank  shot,  and  in  case  of 
further  delay  a  shotted  gun  may  be 
fired  across  the  bows  of  the  delin- 
quent."— Ibid.  "  Any  measure  be- 
yond this  which  the  commander 
of  an  armed  ship  may  take  for  the 
purpose  of  ascertaining  the  nation- 
ality of  another  vessel  must  be  at 
his  peril."— Ibid.  "  This  right  of 
inquiry  can  be  exercised  only  on 
the  high  seas,  and  no  naval  officer 
has  the  right  to  go  into  the  harbor 
of  a  nation  with  which  his  govern- 
ment is  at  peace  to  inquire  into 
the  nationality  of  a  vessel  which  is 
lying  there." — Ibid. 


490  THE    ELEMENTS   OF    INTERNATIONAL   LAW 

appears  to  have  been  made  to  the  government  of  the  United 
States  as  to  her  character  or  employment  during  the  period  in 
question. 

On  October  30,  1873,  she  sailed  from  Jamaica  for  Port  Limon, 
in  Costa  Rica,  carrying  the  American  flag,  and  provided  with 
regular  clearance  papers  from  the  American  consul  at  Kingston, 
Jamaica.  On  October  31,  while  on  the  high  seas,  about  twenty 
miles  distant  from  the  island  of  Cuba,  she  was  sighted  and 
chased  by  the  Spanish  war  steamer  Tornado.  After  a  pursuit 
of  about  eight  hours  she  was  captured  on  the  high  seas,  at  a 
point  about  sixty  miles  distant  from  the  coast  of  Cuba,  and 
twenty-three  miles  from  the  island  of  Jamaica,  in  which  direc- 
tion she  was  steaming  at  the  time.  She  was  boarded  by  an 
officer  of  the  Tornado,  her  officers,  crew,  and  passengers  were 
made  prisoners,  and  she  was  sent  under  a  prize  crew  to  the 
Spanish  port  of  Santiago  de  Cuba,  where  she  arrived  on  the 
evening  of  November  i. 

At  nine  o'clock  on  the  morning  of  the  following  day  a  court- 
martial  was  convened  for  the  trial  of  the  captured  persons, 
who  were  arraigned  on  a  charge  of  piracy.  The  court-martial 
completed  its  labors  at  four  o'clock  in  the  afternoon  of  the 
same  day.  On  the  morning  of  November  4  four  persons  were 
executed,  on  the  7th  twelve,  on  the  13th  thirty-seven  more, 
including  a  number  of  British  subjects  and  citizens  of  the 
United  States. 

The  attention  of  the  Spanish  Government  was  immediately 
drawn  to  the  occurrence,  and  protests  against  the  action  of  its 
subordinate  officials  were  made  by  the  American  consuls  at 
Havana  and  Santiago  de  Cuba,  but  with  so  little  effect  that, 
on  November  14th,  the  United  States  minister  to  Spain  was 
instructed  to  demand  the  restoration  of  the  steamer,  the  return 
and  delivery  to  the  United  States  of  the  persons  who  had  been 
captured,  and  the  punishment  of  the  officials  who  had  been 
concerned  in  the  capture  of  the  vessel  and  the  execution  of 
her  crew.  He  was  also  instructed  to  demand  that  the  flag  of 
the  United  States  should  be  saluted  in  the  harbor  of  Santiago 
de  Cuba.     After  some  correspondence  between  the  two  gov- 


THE   RIGHT    OF   SEARCH  49I 

ernments  an  agreement  was  entered  into  on  November  29, 
between  the  Secretary  of  State  and  the  Spanish  minister  in 
Washington,  stipulating  for  the  restoration  of  the  vessel  and 
the  surrender  of  the  survivors  of  the  passengers  and  crew.  It 
was  also  agreed  that  the  flag  of  the  United  States  should  be 
saluted  on  the  25th  day  of  December  next  ensuing.  If,  how- 
ever, on  or  before  that  date,  the  Spanish  government  should 
prove  that  the  Virgiiiius  was  not  entitled  to  her  American 
register,  the  salute  was  to  be  spontaneously  dispensed  with ; 
the  United  States  agreeing  to  institute  legal  proceedings 
against  the  vessel,  if  it  should  be  found  that  she  had  violated 
any  law  of  the  United  States,  and  against  any  person  who  was 
shown  to  have  been  concerned  in  such  violation. 

The  ship  and  survivors  were  surrendered  at  Santiago  de  Cuba 
on  December  18,  1873  '■>  ^n<^  it  having  been  made  to  appear,  to 
the  satisfaction  of  the  United  States,  that  the  Virginius  was 
not  entitled  to  carry  its  flag  and  papers,  the  Spanish  minister 
w^as  formally  notified  that  the  salute  would  be  dispensed  with.' 

The  following  conclusions  seem  to  be  warranted  by  the 
facts  in  the  case  : 

(^2:.)  The  Virginius  was  not  a  pirate,  whatever  may  have 
been  the  character  of  the  transaction  in  which  she  was  en- 
gaged, and  the  Spanish  authorities  acted  without  warrant  of 
international  law  in  proceeding  against  the  crew  and  passen- 
gers for  the  crime  of  piracy. 

{b^  The  Spanish  Government  would  have  been  justified  in 
resisting  any  acts  of  war  or  hostility  directed  against  itself 
and  occurring  within  its  territorial  waters.  It  matters  not 
with  whom  such  acts  or  attempts  originated,  or  by  whom  they 
were  committed,  whether  subjects  or  aliens.  Had  the  Vir- 
ginius, therefore,  been  found  in  Spanish  jurisdiction,  engaged 
in  landing,  or  attempting  to  land,  her  passengers   upon  the 

'  III  Dig.  Int.  Law,  §  327;    Pari,  companying    property,    under    the 

Pap.  1874,  Ixxvi.  pp.  65,  85;     Hall,  law  of  nations,  are  hnX.  prima  facie 

pp.  263,  264,  271-274;    Woolsey,  §  evidence  of  such  property,  and  are 

214;  Boyd's  Wheaton,  §  1 24d ;  For.  of    no    force    when    shown    to   be 

Rel.    U.    S.    1876,     pp.    488-490.  fraudulent."  —  United    States    vs, 

"  Ship's  papers  and  documents  ac-  the  Amistad,  15  Peters,  518  [520], 


492  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

coast  of  Cuba,  her  forcible  seizure  would  have  been  justified. 
Had  resistance  been  offered,  that  resistance  could  have  been 
overcome  by  force  at  any  cost  of  life  or  property.  The  treat- 
ment of  those  on  board  would  then  have  been  determined, 
according  to  the  nature  and  degree  of  their  offences,  by  the 
municipal  laws  of  Spain.  If  the  provisions  of  that  system  of 
law  had  been  affected  or  modified  by  treaty  stipulations,  guar- 
anteeing to  the  citizens  or  subjects  of  foreign  states  certain 
rights  and  privileges  in  the  event  of  their  being  charged  with 
crtme  while  in  Spanish  jurisdiction,  the  government  of  Spain 
would  have  been  responsible  for  the  observance  of  the  treaty 
in  all  cases  to  which  its  provisions  applied. 

{c.)  The  pursuit  and  capture  of  the  vessel  on  the  high  seas 
was  an  act  of  very  doubtful  validity,  and  could  only  have  been 
justified,  in  any  event,  by  the  extreme  urgency  of  the  case, 
and  then  only  in  the  exercise  of  the  right  of  self-defence.  In 
this  instance  it  is  extremely  doubtful  whether  such  an  emer- 
gency existed  as  to  justify  a  resort  to  force  in  self-defence. 
The  Virgijiius  was  flying  the  American  flag  when  sighted,  and 
had  not  then  entered  Spanish  waters ;  until  she  did  so  enter 
them  she  was  not  subject  to  visitation  and  search,  still  less  to 
pursuit  and  capture.' 

{d.)  The  later  conduct  of  the  Spanish  authorities  in  Cuba 
can  only  be  characterized  as  unnecessary,  not  warranted  by 
the  emergency,  and  cruel  and  inhuman  in  the  extreme.  It 
was  also  contrary  to  the  stipulations  of  treaties,  and  was  gross- 
ly illegal  even  when  judged  by  the  standard  of  the  municipal 

'  "  The  Virginius,  though  regis-  register  and  carrying  an  American 

tered  as  an  American  vessel,  was,  flag,  she  was  as  much  exempt  from 

in   fact,  owned  by  foreigners,  and  interference  by  another  power  as 

the  registry  thereof  was  fraudulent-  though  she  had  been  lawfully  reg- 

ly  obtained  ;  and  hence,  at  the  time  istered  ;   the  question  whether  or 

of  her  capture  by  the  Spanish  man-  not   her  register  was  fraudulently 

of-war  T'^r;/^?^^?,  she  had  no  right,  by  obtained.or  whether  or  not  she  was 

virtueofthat  registry,  as  against  the  sailing  in  violation  of  any  law  of  the 

United  States,  to  carry  the  Ameri-  United  States,  being  one  overwhich 

can  flag."  —  XIV  Opin.  Att.-Gen.  such  power  could  not  then  and  there 

p.  49.     "  Yet,  while  upon  the  high  rightfully  exercise  jurisdiction." — 

seas,  actually  bearing  an  American  Ibid. 


THE   RIGHT   OF   SEARCH  493 

law  of  Spain.  The  Virginins  was  an  unarmed  merchant  ves- 
sel. She  offered,  and  was  capable  of  offering,  no  resistance 
to  search  or  capture.  Her  passengers,  at  the  instant  of  capt- 
ure, were  not  armed  or  organized,  and  so  were  incapable  of 
levying  war  against  the  authority  of  Spain,  whatever  may  have 
been  their  ultimate  intention.  So  soon  as  the  passengers  and 
crew  were  made  prisoners  they  were  absolutely  powerless  to 
do  harm,  and  the  fact  that  the  ship  sailed  under  the  Ameri- 
can flag  should  have  suggested  such  reasonable  delay  in  the 
proceedings  against  them  as  would  have  sufficed  to  enable 
proper  representations  to  be  made  to  that  government  as  to 
the  service  in  which  its  flag  and  papers  were  being  used. 

(£•.)  The  action  of  the  Spanish  authorities  in  this  matter 
would  not  have  been  justified  or  recognized  as  lawful  had  it 
been  performed  by  a  belligerent  in  time  of  war.  Had  a  state 
of  open  war  existed,  and  had  the  Virginiiis  been  captured  at 
sea  with  enemy  goods  or  contraband  articles  on  board,  the 
sliip  would  not  have  been  involved  in  the  forfeiture,  and  her 
passengers  and  crew  could  not  have  been  subjected  to  deten- 
tion. Had  she  been  captured  in  the  act  of  violating  a  legal 
blockade,  the  ship  and  cargo  alone  would  have  been  liable  to 
forfeiture.  Had  she  been  engaged  in  carrying  military  persons 
to  a  hostile  destination,  her  contraband  passengers  only  could 
have  been  made  prisoners  of  war.  The  crew  could  have  in- 
curred no  penal  consequences  for  their  share  in  the  transaction. 

The  Right  of  Visitation  :  Impressment  of  Seamen 

The  Right  of  Visitation.  The  belligerent  right  of  search 
has  never  been  seriously  questioned,  and  is  accepted  by  all 
nations  as  a  fact  inseparably  connected  with  the  existence  of 
war.  A  right  somewhat  resembling  it,  called  the  right  of  vis- 
itation, has  been  asserted  to  exist  in  time  of  peace,  but  has 
never  received  universal  sanction,  and  is  now  generally  aban- 
doned, save  in  a  few  cases,  where  it  maintains  a  lingering  ex- 
istence by  treaty.  In  the  long  controversy  which  was  carried 
on  as  to  the  assumed  legality  of  this  right,  during  the  early 


494 


THE    ELEMENTS   OF   INTERNATIONAL   LAW 


part  of  the  present  century,  England  and  the  United  States 
were  the  principal  participants. 

It  was  maintained,  on  the  part  of  the  British  Government, 
that  the  rights  of  search  and  visitation  were  entirely  distinct 
from  each  other,  having  a  different  origin  and  purpose.  The 
rigJit  of  search  was  peculiar  to  a  state  of  war.  The  right  of 
visitation  existed  in  peace,  and  consisted  in  such  an  examina- 
tion of  merchant  vessels,  on  the  high  seas,  as  was  necessary  to 
determine  their  nationality,  the  sufficiency  and  regularity  of 
their  papers,  and  the  legality  of  the  undertaking  in  which  they 
were  engaged. 

On  the  part  of  the  United  States,  it  was  contended  that  the 
right  of  search  was  an  incident  of  belligerency;  that  it  existed 
only  during  the  continuance  of  war,  and  not  only  did  not  ex- 
ist in  time  of  peace,  but  an  attempt  to  exercise  it  was  an  in- 
vasion of  sovereignty  which,  if  not  disclaimed,  would  consti- 
tute a  just  cause  for  war.  The  controversy  was  brought  to 
an  end,  in  1858,  by  a  formal  renunciation,  on  the  part  of  the 
British  Government,  of  the  right  of  visitation  in  time  of  peace, 
except  in  cases  where  it  was  authorized  by  treaty  stipulations. 
Of  the  justice  and  expediency  of  this  abandonment  there  can 
be  little  question.  The  crimes  of  piracy  and  the  slave-trade, 
the  prevalence  of  which  furnished  the  only  reason  for  its  ex- 
istence, have  practically  disappeared.  Its  continued  exercise, 
therefore,  is  unnecessary,  giving  rise  to  constant  complaint  and 
frequent  international  misunderstandings ;  nor  can  any  good 
purpose  be  accomplished  by  it  which  could  not  be  attained  by 
the  use  of  other  and  less  questionable  means.  It  lies  within 
the  power  of  every  maritime  state  to  establish  and  maintain 
such  constant  police  supervision  over  its  merchant  marine  as 
will  prevent  its  register  from  being  improperly  used,  and  its 
flag  from  covering  transactions  which  are  not  authorized  by 
its  municipal  laws  or  sanctioned  by  the  law  of  nations.' 

'  II  Halleck,  pp.  268-283;   Man-  ton,  §§    106-109,  notes  66,  67;  V 

ning,  pp.  456-464;  Ortolan,   liv.  ii.  Calvo,    §§   2939,    2940,  2954,   2992- 

chap.  xi.    pp.  253-256;    III  Philli-  3003;  Woolsey,  §§  219-221  ;  Snow, 

niore,  pp.  522  -  530  ;  Dana's  Whea-  p.  1 59  ;  HI  Dig.  Int.  Law,  §  327  ;  the 


THE    RIGHT    OF    SEARCH  495 

Impressment  of  Seamen.  During  the  naval  wars  succeeding 
the  French  Revolution,  the  British  Government,  in  exercising 
the  right  of  search,  made  a  practice  of  extracting  certain  per- 
sons from  neutral  vessels,  claiming  that  they  were  British  sub- 
jects, and  so  liable  to  impressment  into  its  naval  service.  The 
exercise  of  this  right,  which  never  received  the  sanction  of 
international  law,  bore  with  peculiar  hardship  upon  vessels 
sailing  under  the  American  flag,  and  manned  largely  by  per- 
sons of  the  same  race  and  speaking  the  same  language  as 
those  by  whom  the  search  was  conducted,  and  upon  whose 
decision,  in  the  matter  of  nationality,  the  question  of  seizure 
largely  depended.  On  the  part  of  Great  Britain  it  was  alleged 
that  an  important  naval  war  was  being  carried  on,'  of  the  justice 
of  which  there  could  be  no  question,  and  whose  ultimate  suc- 
cess involved  the  maintenance  of  enormous  armaments  at  sea. 
To  maintain  its  position,  the  British  Government  had  been 
obliged  to  impose  heavy  burdens  upon  the  property  and  per- 
sonal services  of  its  subjects,'  many  of  whom  had  attempted 
to  evade  their  obligation  by  taking  service  in  the  merchant 
marine  of  neutral  powers.  The  continued  exercise  of  this 
right,  in  the  face  of  repeated  protests,  led  to  the  war  of  18 12 
between  England  and  the  United  States,  which  was  terminated, 
however,  without  a  definite  settlement  of  this  important  ques- 
tion. The  controversy  was  revived  at  a  later  period,  and  was 
exhaustively  discussed  by  representatives  of  both  governments 
in  a  long  and  ably  conducted  diplomatic  correspondence.^     It 


Mariana  Flora,   11   Wheaton,  42-  eign  ships  wherever  met  with." — 

44;  Le Lota's,  2  Dodson,  Adm.  Rep.  II  Halleck,  p.  302,  note. 

p.  210.  '  The  United  States  Navy  Reg- 

'  "  It  has  been  estimated  that  at  ulations,  ed.  1896,  par.  410,  contains 
one  time  over  seventy  thousand  the  following  provision  :  "Corn- 
British  subjects  were  employed  in  manders  of  public  vessels  of  war  are 
the  naval  and  merchant  services  not  to  suffer  their  vessels  to  be 
of  foreign  powers." — Ashton,  Old  searched  by  any  foreign  power  un- 
Times.  der  any  pretext,  nor  any  officers  or 

•  "  Article  45  of  the  British  Navy  men  to  be  taken  out,  so  long  as  they 
Regulations  of  1787  required  com-  have  power  of  resistance.  If  force 
manders  of  English  men-of-war  to  be  used,  resistance  must  be  con- 
demand  English  seamen  out  of  for-  tinued  as  long  as  possible.    If  over- 


496  THE  ELEMENTS  OF   INTERNATIONAL  LAW  / 

was  terminated,  so  far  as  the  American  Government  was  con- 
cerned, by  an  announcement  of  policy  contained  in  a  letter  of 
Mr.  Webster  to  Lord  Ashburton,  bearing  date  of  August  8, 
1842.  "The  Arrierican  Government,"  says  Mr.  Webster,  "is 
prepared  to  say  that  the  practice  of  impressing  seamen  from 
American  vessels  cannot  hereafter  be  allowed  to  take  place. 
That  practice  is  founded  on  principles  which  it  does  not  recog- 
nize, and  is  invariably  attended  by  consequences  so  unjust,  so 
injurious,  and  of  such  formidable  magnitude  as  cannot  be  sub- 
mitted to.  In  the  early  disputes  between  the  two  governments 
on  this  so-long-contested  topic,  the  distinguished  person  to 
whose  hands  were  first  committed  the  seals  of  this  department 
declared  that  the  simplest  rule  will  be,  that  the  vessel,  being 
American,  shall  be  evidence  that  the  seamen  on  board  are  such. 
Fifty  years'  experience,  the  utter  failure  of  many  negotiations, 
and  a  careful  reconsideration  now  had  of  the  whole  subject,  at 
a  moment  when  the  passions  are  laid  and  no  present  interest 
or  emergency  exists  to  bias  the  judgment,  have  fully  convinced 
this  government  that  this  is  not  only  the  simplest  and  best, 
but  the  only  rule  which  can  be  adopted  and  observed  consist- 
ently with  the  rights  and  honor  of  the  United  States  and  the 
security  of  their  citizens.  That  rule  announces,  therefore, 
what  will  hereafter  be  the  principle  maintained  by  their  gov- 
ernment. In  every  regularly  documented  American  merchant 
vessel  the  crew  who  navigate  it  will  find  their  protection  in  the 
flag  which  floats  over  them^  ' 


come,  they  are  to  yield  their  vessel,  ed  to  American  merchant  vessels 
but  not  their  men  without  the  alone,  but  was  exercised  upon  pub- 
vessel."  I'C  vessels  as  well.  In  1798  the 
'  Secretary  Webster  to  Lord  Ash-  British  war-ship  Caniatic,  seventy- 
burton,  August  8,  1842,  Webster,  four,  boarded  an  American  war 
Diplomatic  and  Official  Papers,  vessel  off  the  port  of  Havana.  See, 
p.  loi  ;  Dana's  Wheaton,  §§  106-  also,  the  case  of  the  President,  II 
109,  note  67;  III  Dig.  Int. 'Law,  §  Halleck,  p.  303,  note;  Brenton, 
327;  II  Halleck,  pp.  300-303;  Man-  Naval  History  of  Great  Britain, 
ning,  pp.  456-464 ;  Woolsey,  §  221  ;  pp.  200-203;  vol.  xxii.  Revue  de 
Snow,  p.  162;  I  Kent  (Holmes's  ed.),  Droit  International,  pp.  317.  4545 
p.  153.  noteb.  The  practice  of  im-  vol.  xix.  Ibid.  p.  367;  vol.  xx.  Ibid, 
pressing  seamen  was  not  restrict-  pp.  349,  487,  601. 


THE   RIGHT   OF   SEARCH  497 

References.  The  student,  for  fuller  discussion  of  this  subject,  is  referred 
to  Vattel,  liv.  iii.  chap.  vii.  §§  114-116;  II  Halleck,  chap,  xxvii.,  with 
the  references  there  given  to  the  "American  State  Papers";  Boyd's 
Wheaton,  pp.  169-173,607-622;  Manning,  bk.  v.  chap.  xi. ;  III  Pliilli- 
more,  pp.  522-558;  Dahlgren,  pp.  loo-iio;  Woolsey,  §§  208-221;  Glass, 
"Marine  International  Law,"  pp.  509-552;  Dana's  Wheaton  and  Law- 
rence's Wheaton,  with  their  references  to  the  correspondence  between  the 
British  and  American  governments  upon  the  question  of  impressment 
and  the  rights  of  visitation  and  search;  II  G.  F.  De  Martens,  §  321; 
Heffter,  pp.  318-328;  Wheaton, "  History  of  the  Law  of  Nations,"  pp. 
145-151,  392-449,  599-713;  III  Hautefeuille,  pp.  1-208;  V  Calvo,  §§ 
2939-3003;  n  Twiss,  §§  91-95;  Hall,  §§  270-273;  II  Ortolan,  pp.  245- 
282;  III  Digest  of  International  Law,  §§  327-331 ;  Walker,  "Science  of 
International  Law,"  pp.  123-124;  Lawrence,  §  210;  II  Ferguson,  §§  236- 
240;  Bluntschli,  §§  819-826.  See,  also,  the  articles  by  M.  Lyon-Caen,  in 
vol.  xix.  "Revue  de  Droit  International,"  p.  367;  vol.  xx.  Ibid.  pp.  349, 
487,  601 ;  and  "  Le  Droit  de  Visite,"  by  Thomas  Barclay,  vol  xxii.  Ibid, 
pp.  317,454. 
32 


APPENDICES 


APPENDIX  A 

PROFESSOR  FRANCIS  LIEBER'S  INSTRUCTIONS  FOR  THE 
GOVERNMENT  OF  ARMIES  OF  THE  UNITED  STATES 
IN   THE   FIELD 

History 

The  need  of  a  positive  code  of  instructions  was  severely  felt  dur- 
ing the  early  part  of  the  Civil  War  in  the  United  States.  During 
the  first  two  years  of  that  war  the  Federal  Government  had  suc- 
ceeded in  placing  in  the  field  armies  of  unexampled  size,  composed, 
in  great  part,  of  men  taken  from  civil  pursuits,  most  of  whom  were 
unfamiliar  with  military  affairs,  and  so  utterly  unacquainted  with 
the  usages  of  war.  These  armies  were  carrying  on  hostile  opera- 
tions of  every  kind  over  a  wide  urea,  and  questions  of  considerable 
intricacy  and  difficulty  were  constantly  arising,  which  required  for 
their  decision  a  knowledge  of  international  law  which  was  not  al- 
ways possessed  by  those  to  whom  these  questions  were  submitted 
for  decision.  Conflicting  decisions  and  rulings  were  of  frequent  oc- 
currence in  different  armies,  and  at  times  in  different  parts  of  the 
same  field  of  operations  ;  and  great  harm  not  infrequently  resulted 
before  these  decisions  could  be  reversed  by  competent  authority. 

To  remedy  this  difficulty.  Professor  Francis  Lieber,  an  eminent 
jurist,  who  had  been  for  many  years  an  esteemed  and  honored  citi- 
zen of  the  United  States,  was  requested  by  the  Secretary  of  War 
to  prepare  a  code  of  instructions  for  the  government  of  the  armies 
in  the  field.  This  code,  while  conforming  to  the  existing  usages  of 
war  on  land,  was  to  contain  such  modifications  as  were  necessary  to 
adapt  those  usages  to  the  peculiar  circumstances  of  the  contest  then 
prevailing.     The  rules  prepared  by  Dr.  Lieber  were  submitted  to  a 


500  THE   ELEMENTS   OF    INTERNATIONAL    LAW 

board  of  officers,  by  whom  they  were  approved  and  recommended 
for  adoption.  They  were  published  in  1863,  and  were  made  obli- 
gatory upon  the  armies  of  the  United  States  by  their  publication  in 
the  form  of  a  General  Order  of  the  War  Department. 

Although  more  than  a  generation  has  elapsed  since  they  were  pre- 
pared, they  are  still  in  substantial  accordance  with  the  existing  rules 
of  international  law  upon  the  subject  of  which  they  treat,  and  form 
the  basis  of  Bluntschli's  and  other  elaborate  works  upon  the  usages 
of  war.  They  are  accepted  by  text  writers  of  authority  as  having 
standard  and  permanent  value,  and  as  expressing,  with  great  accuracy, 
the  usage  and  practice  of  nations  in  war. 

There  has  been  some  misunderstanding,  however,as  to  the  force  and 
significance  of  Professor  Lieber's  rules,  to  which  it  is  proper  to  allude. 

The  war  which  existed  at  that  time  was  strictly  internal  in  char- 
acter;  and,  although  the  belligerency  of  the  states  in  rebellion  had 
been  recognized  by  the  Federal  Government,  the  character  of  the 
contest,  in  many  of  its  aspects,  differed  materially  from  an  external 
war,  in  which  the  belligerent  parties  were  independent  states. 

The  war  policy  of  the  United  States  towards  the  insurrectionary 
forces  was,  in  the  main,  in  accordance  with  the  laws  of  war,  as  those 
laws  were  then  accepted  and  understood.  Its  enemies,  however, 
were  its  own  citizens,  who,  for  the  time,  denied  its  sovereign  authority, 
and  refused  obedience  to  its  laws.  Its  right  to  suppress  the  rebellion, 
and  its  right  to  choose  its  method  of  doing  so,  were  alike  beyond  dis- 
pute. In  the  exercise  of  this  right  it  was  at  perfect  liberty  to  choose 
any  policy  between  the  methods  provided  by  its  municipal  laws,  on 
the  one  hand,  and  those  provided  by  the  law  of  nations  on  the  other. 

As  a  matter  of  fact  it  chose  a  war  policy  lying  between  the  ex- 
tremes above  indicated.  General  operations  in  the  field  were  carried 
on  in  accordance  with  the  laws  of  war.  In  its  treatment  of  the  prop- 
erty of  individuals  in  rebellion,  in  its  view  of  occupation  and  of 
occupied  territory,  and  in  its  policy  towards  the  residents  of  such 
occupied  territory,  it  pursued  a  course  which  it  deemed  best  suited 
to  the  task  upon  which  it  was  then  engaged — the  suppression  of  a 
rebellion  against  its  authority. 

The  rules,  therefore,  cannot  fairly  be  said  to  contain  a  full  expres- 
sion of  the  views  or  future  policy  of  that  government  upon  the  sub- 
ject of  external  war.  Should  such  a  war  occur,  it  is  at  least  ex- 
tremely probable  that  the  United   States   would  range  itself  with 


APPENDIX   A  501 

those   powers    whose   practice  it  is   fo   maintain   small   permanent 
establishments,  and  whose  policy  is  defensive  rather  than  offensive." 


{General  Orders  N^o.  100,  Adjutant-Generar s  Office,  1863.) 

INSTRUCTIONS   FOR    THE  GOVERNMENT   OF   ARMIES  OF    THE 
UNITED   STATES   IN    THE   FIELD 

PREPARED    BY    FRANCIS   LIEBER,  LL.D.,  AND   REVISED   BY   A   BOARD   OF    OFFICERS 
OF   THE   UNITED    STATES   ARMY 

Section  I 

MARTIAL     LAW  —  MILITARY     JURISDICTION  —  MILITARY     NECESSITY  — 

RETALIATION 

1.  How  Established.  A  place,  district,  or  country  occupied  by  an 
enemy  stands,  in  consequence  of  the  occupation,  under  the  martial 
law  of  the  invading  or  occupying  army,  whether  any  proclamation 
declaring  martial  law,  or  any  public  warning  to  the  inhabitants,  has 
been  issued  or  not.  Martial  law  is  the  immediate  and  direct  effect 
and  consequence  of  occupation  or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  martial  law. 

2.  Martial  law  does  not  cease  during  the  hostile  occupation,  ex- 
cept by  special  proclamation,  ordered  by  the  commander-in-chief,  or 
by  special  mention  in  the  treaty  of  peace  concluding  the  war,  when 
the  occupation  of  a  place  or  territory  continues  beyond  the  conclu- 
sion of  peace  as  one  of  the  conditions  of  the  same. 

3.  In  What  it  Consists.  Martial  law  in  a  hostile  country  consists 
in  the  suspension,  by  the  occupying  military  authority,  of  the  crim- 
inal and  civil  law,  and  of  the  domestic  administration  and  govern- 
ment ill  the  occupied  place  or  territory,  and  in  the  substitution  of 
military  rule  and  force  for  the  same,  as  well  as  in  the  dictation  of 
general  laws,  as  far  as  military  necessity  requires  this  suspension, 
substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administra- 
tion of  all  civil  and  penal  law  shall  continue,  either  wholly  or  in  part, 
as  in  times  of  peace,  unless  otherwise  ordered  by  the  military  au- 
thority. 

'  These  instructions  were  issued,  with-  the  armies  of  the  United  States  during 
nut  modification,  for  the  government  of      the  war  with  Spain  in  1898, 


502  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

4.  Effects.  Martial  law  is  simply  military  authority  exercised  in 
accordance  with  the  laws  and  usages  of  war.  Military  oppression 
is  not  martial  law ;  it  is  the  abuse  of  the  power  which  that  law 
confers.  As  martial  law  is  executed  by  military  force,  it  is  incum- 
bent upon  those  who  administer  it  to  be  strictly  guided  by  the  prin- 
ciples of  justice,  honor,  and  humanity — virtues  adorning  a  soldier 
even  more  than  other  men,  for  the  very  reason  that  he  possesses  the 
power  of  his  arms  against  the  unarmed. 

5.  Martial  law  should  be  less  stringent  in  places  and  countries 
fully  occupied  and  fairly  conquered.  Much  greater  severity  may  be 
exercised  in  places  or  regions  where  actual  hostilities  exist,  or  are 
expected  and  must  be  prepared  for.  Its  most  complete  sway  is 
allowed — even  in  the  commander's  own  country — when  face  to  face 
with  the  enemy,  because  of  the  absolute  necessities  of  the  case,  and 
of  the  paramount  duty  to  defend  the  country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual  course 
in  the  enemy's  places  and  territories  under  martial  law,  unless  in- 
terrupted or  stopped  by  order  of  the  occupying  military  power;  but 
all  the  functions  of  the  hostile  government — legislative,  executive,  or 
administrative — whether  of  a  general,  provincial,  or  local  character, 
cease  under  martial  law,  or  continue  only  with  the  sanction,  or,  if 
deemed  necessary,  the  participation  of  the  occupier  or  invader. 

7.  Martial  law  extends  to  property,  and  to  persons,  whether  they 
are  subjects  of  the  enemy  or  aliens  to  that  government. 

8.  Consuls,  among  American  and  European  nations,  are  not  diplo- 
matic agents.  Nevertheless,  their  offices  and  persons  will  be  sub- 
jected to  martial  law  in  cases  of  urgent  necessity  only ;  their 
property  and  business  are  not  exempted.  Any  delinquency  they 
commit  against  the  established  military  rule  may  be  punished  as  in 
the  case  of  any  other  inhabitant,  and  such  punishment  furnishes  no 
reasonable  ground  for  international  complaint. 

9.  The  functions  of  ambassadors,  ministers,  or  other  diplomatic 
agents,  accredited  by  neutral  powers  to  the  hostile  government, 
cease,  so  far  as  regards  the  displaced  government;  but  the  conquer- 
ing or  occupying  power  usually  recognizes  them  as  temporarily  ac- 
credited to  itself. 

ID.  Martial  law  afifects  chiefly  the  police  and  collection  of  public 
revenue  and  taxes,  whether  imposed  by  the  expelled  government  or 


■  APPENDIX   A  503 

by  the  invader,  and  refers  mainly  to  the  support  and  efficiency  of 
the  army,  its  safety,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad 
faith  concerning  engagements  concluded  with  the  enemy  during  the 
war,  but  also  the  breaking  of  stipulations  solemnly  contracted  by  the 
belligerents  in  time  of  peace,  and  avowedly  intended  to  remain  in 
force  in  case  of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  individual 
gain  ;  all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offences  to  the  contrary  shall  be  severely  punished,  and  espe- 
cially so  if  committed  by  officers. 

12.  Hoio  Executed.  Whenever  feasible,  martial  law  is  carried  out 
in  cases  of  individual  offenders  by  military  courts  ;  but  sentences  of 
death  shall  be  executed  only  with  the  approval  of  the  chief  executive, 
provided  the  urgency  of  the  case  does  not  require  a  speedier  execu- 
tion, and  then  only  with  the  approval  of  the  chief  commander. 

13.  Military  Jurisdiction.  Military  jurisdiction  is  of  two  kinds  : 
first,  that  which  is  conferred  and  defined  by  statute  ;  second,  that 
which  is  derived  from  the  common  law  of  war.  Military  offences 
under  the  statute  law  must  be  tried  in  the  manner  therein  directed  ; 
but  military  offences  which  do  not  come  within  the  statute  must  be 
tried  and  punished  under  the  common  law  of  war.  The  character  of 
the'  courts  which  exercise  these  jurisdictions  depends  upon  the  local 
laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial  ;  while  cases  which  do  not  come  within  the  "  Rules  and 
Articles  of  War,"  or  the  jurisdiction  conferred  by  statute  on  courts- 
martial,  are  tried  by  military  commissions. 

14.  Military  Necessity.  Military  necessity,  as  understood  by  mod- 
ern civilized  nations,  consists  in  the  necessity  of  those  measures  which 
are  indispensable  for  securing  the  ends  of  the  war,  and  which  are 
lawful  according  to  the  modern  law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or 
limb  of  armed  enemies,  and  of  other  persons  whose  destruction  is 
incidentally  unavoidable  in  the  armed  contests  of  the  war  ;  it  allows 
of  the  capturing  of  every  armed  enemy,  and  every  enemy  of  impor- 
tance to  the  hostile  government,  or  of  peculiar  danger  to  the  captor  ; 
it  allows  of  all  destruction  of  property,  and  obstruction  of  the  ways 
and  channels  of  traffic,  travel,  or  communication,  and  of  all  with- 


$04  I'JIE   ELEMENTS    OF   INTERNATIONAL   LAW 

holding  of  sustenance  or  means  of  life  from  the  enemy;  of  the  ap- 
propriation of  whatever  an  enemy's  country  affords  necessary  for  the 
subsistence  and  safety  of  the  army,  and  of  such  deception  as  does 
not  involve  the  breaking  of  good  faith  either  positively  pledged,  re- 
garding agreements  entered  into  during  the  war,  or  supposed  by  the 
modern  law  of  war  to  exist.  Men  who  take  up  arms  against  one 
another  in  public  war  do  not  cease  on  this  account  to  be  moral 
beings,  responsible  to  one  another,  and  to  God. 

i6.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  in- 
fliction of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of 
maiming  or  wounding  except  in  fight,  nor  of  torture  to  extort  con- 
fessions. It  does  not  admit  of  the  use  of  poison  in  any  way,  nor  of 
the  wanton  devastation  of  a  district.  It  admits  of  deception,  but 
disclaims  acts  of  perfidy  ;  and,  in  general,  military  necessity  does  not 
include  any  act  of  hostility  which  makes  the  return  to  peace  unnec- 
essarily difficult. 

17.  War  is  not  carried  on  by  arms  alone.  It  is  lawful  to  starve  the 
hostile  belligerent,  armed  or  unarmed,  so  that  it  leads  to  the  speedier 
subjection  of  the  enemy. 

18.  When  the  commander  of  a  besieged  place  expels  the  non-com- 
batants, in  order  to  lessen  the  number  of  those  who  consume  his  stock 
of  provisions,  it  is  lawful,  though  an  extreme  measure,  to  drive  them 
back,  so  as  to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  bombard  a  place,  so  that  the  non  combatants,  and  es- 
pecially the  women  and  children,  may  be  removed  before  the  bom- 
bardment commences.  But  it  is  no  infraction  of  the  common  law 
of  war  to  omit  thus  to  inform  the  enemy.  Surprise  may  be  a  ne- 
cessity. 

20.  Public  War.  Public  war  is  a  state  of  armed  hostility  between 
sovereign  nations  or  governments.  It  is  a  law  and  requisite  of  civ- 
ilized existence  that  men  live  in  political,  continuous  societies,  form- 
ing organized  units,  called  states  or  nations,  whose  constituents 
bear,  enjoy,  and  suffer,  advance  and  retrograde  together,  in  peace 
and  in  war. 

21.  Ejiemies.  The  citizen  or  native  of  a  hostile  country  is  thus  an 
enemy,  as  one  of  the  constituents  of  the  hostile  state  or  nation,  and 
as  such  is  subjected  to  the  hardships  of  the  war. 

22.  Non-combatants.     Nevertheless,   as  civilization  has   advanced 


APPENDIX    A  505 

during  the  last  centuries,  so  has  likewise  steadily  advanced,  especially 
in  war  on  land,  the  distinction  between  the  private  individual  belong- 
ing to  a  hostile  country  and  the  hostile  country  itself,  with  its  men 
in  arms.  The  principle  has  been  more  and  more  acknowledged  that 
the  unarmed  citizen  is  to  be  spared  in  person,  property,  and  honor  as 
much  as  the  exigencies  of  war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried 
off  to  distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed 
in  his  private  relations  as  the  commander  of  the  hostile  troops  can 
afford  to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues 
to  be  with  barbarous  armies,  that  the  private  individual  of  the  hostile 
country  is  destined  to  suffer  every  privation  of  liberty  and  protection, 
and  every  disruption  of  family  ties.  Protection  was,  and  still  is  with 
uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descen- 
dants in  other  portions  of  the  globe,  protection  of  the  inoffensive 
citizen  of  the  hostile  country  is  the  rule  ;  privation  and  disturbance 
of  private  relations  are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrates  and  civil 
officers  of  the  hostile  country  to  take  the  oath  of  temporary  alle- 
giance or  an  oath  of  fidelity  to  their  own  victorious  government  or 
rulers,  and  they  may  expel  every  one  who  declines  to  do  so.  But 
whether  they  do  so  or  not,  the  people  and  their  civil  officers  owe 
strict  obedience  to  them  as  long  as  they  hold  sway  over  the  district 
or  country,  at  the  peril  of  their  lives. 

27.  Retaliation.  The  law  of  war  can  no  more  wholly  dispense  with 
retaliation  than  can  the  law  of  nations,  of  which  it  is  a  branch.  Yet 
civilized  nations  acknowledge  retaliation  as  the  sternest  feature  of 
war.  A  reckless  enemy  often  leaves  to  his  opponent  no  other  means 
of  securing  himself  against  the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure 
of  mere  revenge,  but  only  as  a  means  of  protective  retribution,  and, 
moreover,  cautiously  and  unavoidably — that  is  to  say,  retaliation  shall 
only  be  resorted  to  after  careful  inquiry  into  the  real  occurrence,  and 
the  character  of  the  misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  further 
and  further  from  the  mitigating  rules  of  a  regular  war,  and  by  rapid 
steps  leads  them  nearer  to  the  internecine  wars  of  savages. 


506  THE   ELEMENTS   OF  IxNTERNATIONAL   LAW 

29.  Modern  War.  Modern  times  are  distinguished  from  earlier 
ages  by  the  existence,  at  one  and  the  same  time,  of  many  nations 
and  great  governments  related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition  ;  war  is  the  exception.  The  ul- 
timate object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  co-existence  of  modern  nations, 
and  ever  since  wars  have  become  great  national  wars,  war  has  come 
to  be  acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain 
great  ends  of  state,  or  to  consist  in  defence  against  wrong ;  and  no 
conventional  restriction  of  the  modes  adopted  to  injure  the  enemy  is 
any  longer  admitted  ;  but  the  law  of  war  imposes  many  limitations 
and  restrictions,  on  principles  of  justice,  faith,  and  honor. 

Section  II 

PUBLIC  AND  PRIVATE  PROPERTY  OF  THE  ENEMY — PROTECTION  OF 
PERSONS,  AND  ESPECIALLY  WOMEN  ;  OF  RELIGION,  THE  ARTS  AND 
SCIENCES — PUNISHMENT  OF  CRIMES  AGAINST  THE  INHABITANTS 
OF    HOSTILE    COUNTRIES. 

31.  Public  Property.  A  victorious  army  appropriates  all  public 
money,  seizes  all  public  movable  property  until  further  direction  by 
its  government,  and  sequesters  for  its  own  benefit  or  that  of  its  gov- 
ernment all  the  revenues  of  real  property  belonging  to  the  hostile 
government  or  nation.  The  title  to  such  real  property  remains  in 
abeyance  during  military  occupation,  and  until  the  conquest  is  made 
complete. 

32.  A  victorious  army,  by  the  martial  power  inherent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  martial  power  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  ex- 
isting laws  of  the  invaded  country,  from  one  citizen,  subject,  or  na- 
tive of  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty 
of  peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held 
to  be  a  serious  breach  of  the  law  of  war — to  force  the  subjects  of 
the  enemy  into  the  service  of  the  victorious  government,  except  the 
latter  should  proclaim,  after  a  fair  and  complete  conquest  of  the 


APPENDIX    A 


507 


hostile  country  or  district,  that  it  is  resolved  to  keep  the  country, 
district,  or  place  permanently  as  its  own,  and  make  it  a  portion  of 
its  own  country. 

34.  Works  of  Art,  Libraries,  Hospitals.  As  a  general  rule,  the 
property  belonging  to  churches,  to  hospitals,  or  other  establishments 
of  an  exclusively  charitable  character,  to  establishments  of  educa- 
tion, or  foundations  for  the  promotion  of  knowledge,  whether  public 
schools,  universities,  academies  of  learning  or  observatories,  muse- 
ums of  the  fine  arts,  or  of  a  scientific  character  —  such  property  is 
not  to  be  considered  public  property  in  the  sense  of  paragraph  31 ; 
but  it  may  be  taxed  or  used  when  the  public  service  may  requue  it. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or  pre- 
cious instruments,  such  as  astronomical  telescopes,  as  well  as  hospi- 
tals, must  be  secured  against  all  avoidable  injury,  even  when  they 
are  contained  in  fortified  places  while  besieged  or  bombarded, 

36.  If  such  works  of  art,  libraries,  collections,  or  instruments  be- 
longing to  a  hostile  nation  or  government  can  be  removed  without 
injury,  the  ruler  of  the  conquering  state  or  nation  may  order  them 
to  be  seized  and  removed  for  the  benefit  of  the  said  nation.  The 
ultimate  ownership  is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away,  if  captured  by  the 
armies  of  the  United  States,  or  shall  they  ever  be  privately  appro- 
priated or  wantonly  destroyed  or  injured. 

37.  Private  Property.  The  United  States  acknowledge  and  protect, 
in  hostile  countries  occupied  by  them,  religion  and  morality  ;  strictly 
private  property ;  the  persons  of  the  inhabitants,  especially  those  of 
women  ;  and  the  sacredness  of  domestic  relations.  Offences  to  the 
contrary  shall  be  rigorously  punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader 
to  tax  che  people  or  their  property,  to  levy  forced  loans,  to  billet  sol- 
diers, or  to  appropriate  property,  especially  houses,  land,  boats  or 
ships,  and  churches,  for  temporary  and  military  uses. 

38.  Private  property,  unless  forfeited  by  crimes  or  by  offences  of 
the  owner,  can  be  seized  only  by  way  of  military  necessity,  for  the 
support  or  other  benefit  of  the  army  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  re- 
ceipts to  be  given,  which  may  serve  the  spoliated  owner  to  obtain 
indemnity. 

39.  The  salaries  of  civil  officers  of  the  hostile  government  who 


5o8  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

remain  in  the  invaded  territory,  and  continue  the  work  of  their  office, 
and  can  continue  it  according  to  the  circumstances  arising  out  of 
the  war — such  as  judges,  administrative  or  police  officers,  officers  of 
city  or  communal  governments — are  paid  from  the  public  revenue 
of  the  invaded  territory,  until  the  military  government  has  reason 
wholly  or  partially  to  discontinue  it.  Salaries  or  incomes  connected 
with  purely  honorary  titles  are  always  stopped. 

40.  Rules  of  War.  There  exists  no  law  or  body  of  authoritative 
rules  of  action  between  hostile  armies,  except  that  branch  of  the  law 
of  nature  and  nations  which  is  called  the  law  and  usages  of  war  on 
land. 

41.  All  municipal  law  of  the  ground  on  which  the  armies  stand, 
or  of  the  countries  to  which  they  belong,  is  silent  and  of  no  effect 
between  armies  in  the  field. 

42.  Slavery.  Slavery,  complicating  and  confounding  the  ideas  of 
property  (that  is,  of  a  thmg),  and  of  personality  (that  is,  of  humanity), 
exists  according  to  municipal  law  or  local  law  only.  The  law  of 
nature  and  nations  has  never  acknowledged  it.  The  digest  of  the 
Roman  law  enacts  the  early  dictum  of  the  pagan  jurist,  that  "  so 
far  as  the  law  of  nature  is  concerned,  all  men  are  equal."  Fugitives 
escaping  from  a  country  in  which  they  were  slaves,  villains,  or  serfs 
into  another  country,  have,  for  centuries  past,  been  held  free  and 
acknowledged  free  by  judicial  decisions  of  European  countries,  even 
though  the  municipal  law  of  the  country  in  which  the  slave  had 
taken  refuge  acknowledged  slavery  within  its  own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and  a  bellig- 
erent which  admits  of  slaverj%  if  a  person  held  in  bondage  by  that 
belligerent  be  captured  by  or  come  as  a  fugitive  under  the  protection 
of  the  military  forces  of  the  United  States,  such  person  is  immedi- 
ately entitled  to  the  rights  and  privileges  of  a  freeman.  To  return 
such  person  into  slavery  would  amount  to  enslaving  a  free  person, 
and  neither  the  United  States  nor  any  officer  under  their  author- 
ity can  enslave  any  human  being.  Moreover,  a  person  so  made 
free  by  the  law  of  war  is  under  the  shield  of  the  law  of  nations,  and 
the  former  owner  or  state  can  have,  by  the  law  of  postliminy,  no 
belligerent  lien  or  claim  of  service. 

44.  Wanton  Violence.  All  wanton  violence  committed  against  per- 
sons in  the  invaded  country,  all  destruction  of  property  not  com- 
manded by  the  authorized  officer,  all  robbery,  all  pillage  or  sacking. 


APPENDIX   A  509 

even  after  taking  a  place  by  main  force,  all  rape,  wounding,  maim- 
ing, or  killing  of  such  inhabitants,  are  prohibited  under  the  penalty 
of  death,  or  such  other  severe  punishment  as  may  seem  adequate  for 
the  gravity  of  the  offence. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be 
lawfully  killed  on  the  spot  by  such  superior. 

45.  Captured  Property,  Booty.  All  captures  and  booty  belong,  ac- 
cording to  the  modern  law  of  war,  primarily  to  the  government  of 
the  captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed 
under  local  law. 

46.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their 
position  or  power  in  the  hostile  country  for  private  gain,  not  even  for 
commercial  transactions  otherwise  legitimate.  Offences  to  the  con- 
trary committed  by  commissioned  officers  will  be  punished  with 
cashiering  or  such  other  punishment  as  the  nature  of  the  offence 
may  require  ;  if  by  soldiers,  they  shall  be  punished  according  to  the 
nature  of  the  offence. 

47.  Crimes.  Crimes  punishable  by  all  penal  codes,  such  as  arson, 
murder,  maiming,  assaults,  highway  robbery,  theft,  burglary,  fraud, 
forgery,  and  rape,  if  committed  by  an  American  soldier  in  a  hostile 
country  against  its  inhabitants,  are  not  only  punishable  as  at  home, 
but  in  all  cases  in  which  death  is  not  inflicted  the  severer  punish- 
ment shall  be  preferred. 

Section   III 

DESERTERS  —  PRISONERS     OF     WAR  —  HOSTAGES  —  BOOTY    ON     THE 

BATTLE-FIELD 

48.  Deserters.  Deserters  from  the  American  army,  having  entered 
the  service  of  the  enemy,  suffer  death  if  they  fall  again  into  the  hands 
of  the  United  States,  whether  by  capture  or  being  delivered  up  to 
the  American  army;  and  if  a  deserter  from  the  enemy,  having  taken 
service  in  the  army  of  the  United  States,  is  captured  by  the  enemy, 
and  punished  by  them  with  death  or  otherwise,  it  is  not  a  breach 
against  the  law  and  usages  of  war,  requiring  redress  or  retaliation. 

49.  Prisoners  of  War.  A  prisoner  of  war  is  a  public  enemy  armed 
or  attached  to  the  hostile  army  for  active  aid  who  has  fallen  into 


5IO  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

the  hands  of  the  captor,  either  fighting  or  wounded,  on  the  field  or 
in  the  hospital,  by  individual  surrender  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms ;  all  men  who  belong 
to  the  rising  en  masse  of  the  hostile  country  ;  all  those  who  are  at- 
tached to  the  army  for  its  efficiency  and  promote  directly  the  object 
of  the  war,  except  such  as  are  hereinafter  provided  for ;  all  disabled 
men  or  officers  on  the  field  or  elsewhere,  if  captured;  all  enemies 
who  have  thrown  away  their  arms  and  ask  for  quarter,  are  prisoners 
of  war,  and  as  such  exposed  to  the  inconveniences  as  well  as  entitled 
to  the  privileges  of  a  prisoner  of  war. 

50.  Moreover,  citizens  who  accompany  an  army  for  whatever  pur- 
pose, such  as  sutlers,  editors  or  reporters  of  journals,  or  contractors, 
if  captured,  may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  hostile  reigning  family,  male 
or  female,  the  chief,  and  chief  officers  of  the  hostile  government,  its 
diplomatic  agents,  and  all  persons  who  are  of  particular  and  singu- 
lar use  and  benefit  to  the  hostile  army  or  its  government,  are,  if  capt- 
ured on  belligerent  ground,  and  if  unprovided  with  a  safe-conduct 
granted  by  the  captor's  government,  prisoners  of  war. 

51.  Levies  en  Masse.  If  the  people  of  that  portion  of  an  invaded 
country  which  is  not  yet  occupied  by  the  enemy,  or  of  the  whole 
country,  at  the  approach  of  a  hostile  army,  rise,  under  a  duly  author- 
ized levy  en  masse,  to  resist  the  invader,  they  are  now  treated  as 
public  enemies,  and,  if  captured,  are  prisoners  of  war. 

52.  No  belligerent  has  the  right  to  declare  that  he  will  treat  every 
captured  man  in  arms  of  a  levy  e7i  masse  as  a  brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  any  portion  of  the  same, 
already  occupied  by  an  army,  rise  against  it,  they  are  violators  of  the 
laws  of  war,  and  are  not  entitled  to  their  protection. 

53.  C/iapIains,  Surgeons,  etc.  The  enemy's  chaplains,  officers  of  the 
medical  staff,  apothecaries,  hospital  nurses,  and  servants,  if  they  fall 
into  the  hands  of  the  American  army,  are  not  prisoners  of  war,  un- 
less the  commander  has  reasons  to  retain  them.  In  this  latter  case, 
or  if,  at  their  own  desire,  they  are  allowed  to  remain  with  their  capt- 
ured companions,  they  are  treated  as  prisoners  of  war,  and  may  be 
exchanged  if  the  commander  sees  fit. 

54.  Hostages.  A  hostage  is  a  person  accepted  as  a  pledge  for  the 
fulfilment  of  an  agreement  concluded  between  belligerents  during  the 
war  or  in  consequence  of  a  war.    Hostages  are  rare  in  the  present  age. 


APPENDIX   A  511 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war, 
according  to  rank  and  condition,  as  circumstances  may  admit. 

56.  Treatment  of  Prisoners  of  War.  A  prisoner  of  war  is  subject 
to  no  punishment  for  being  a  public  enemy,  nor  is  any  revenge 
wreaked  upon  him  by  the  intentional  infliction  of  any  suffering  or 
disgrace,  by  cruel  imprisonment,  want  of  food,  by  mutilation,  death, 
or  any  other  barbarity. 

57.  So  soon  as  a  man  is  armed  by  a  sovereign  government,  and 
takes  the  soldier's  oath  of  fidelity,  he  is  a  belligerent ;  his  killing, 
wounding,  or  other  warlike  acts  are  no  individual  crimes  or  offences. 
No  belligerent  has  a  right  to  declare  that  enemies  of  a  certain  class, 
color,  or  condition,  when  properly  organized  as  soldiers,  will  not  be 
treated  by  him  as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an 
enemy  of  the  United  States  should  enslave  and  sell  any  captured 
persons  of  their  army,  it  would  be  a  case  for  the  severest  retaliation 
if  not  redressed  upon  complaint. 

The  United  States  cannot  retaliate  by  enslavement ;  therefore  death 
must  be  the  retaliation  for  this  crime  against  the  law  of  nations. 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes  commit- 
ted against  the  captor's  army  or  people,  committed  before  he  was 
captured,  and  for  which  he  has  not  been  punished  by  his  own  author- 
ities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory 
measures. 

60.  Quarter.  It  is  against  the  usage  of  modern  war  to  resolve,  in 
hatred  and  revenge,  to  give  no  quarter.  No  body  of  troops  has  the 
right  to  declare  that  it  will  not  give,  and  therefore  will  not  expect, 
quarter;  but  a  commander  is  permitted  to  direct  his  troops  to  give 
no  quarter,  in  great  straits,  when  his  own  salvation  makes  it  impos- 
sible to  cumber  himself  with  prisoners. 

61.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies  al- 
ready disabled  on  the  ground,  or  prisoners  captured  by  other  troops. 

62.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quar- 
ter in  general,  or  to  any  portion  of  the  army,  receive  none. 

63.  Uniform.  Troops  who  fight  in  the  uniform  of  their  enemies, 
without  any  plain,  striking,  and  uniform  mark  of  distinction  of  their 
own,  can  expect  no  quarter. 

64.  If  American  troops  capture  a  train  containing  uniforms  of  the 


^12  tHE   ELEMENTS   OF   INTERNATIONAL  LAW 

enemy,  and  the  commander  considers  it  advisable  to  distribute  them 
for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted 
to  distinguish  the  American  soldier  from  the  enemy. 

65.  J^/ag.  The  use  of  the  enemy's  national  standard,  flag,  or  other 
emblem  of  nationality,  for  the  purpose  of  deceiving  the  enemy  in 
battle,  is  an  act  of  perfidy  by  which  they  lose  all  claim  to  the  protec- 
tion of  the  laws  of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  American  troops, 
under  a  misapprehension  of  his  true  character,  he  may,  nevertheless, 
be  ordered  to  suffer  deaih  if,  within  three  days  after  the  battle,  it  be 
discovered  that  he  belongs  to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations  allows  every  sovereign  government  to  make 
war  upon  another  sovereign  state,  and,  therefore,  admits  of  no  rules 
or  laws  different  from  those  of  regular  warfare  regarding  the  treat- 
ment of  prisoners  of  war,  although  they  may  belong  to  the  army  of  a 
government  which  the  captor  may  consider  as  a  wanton  and  unjust 
assailant. 

68.  Unnecessary  Destnution  of  Life.  Modern  wars  are  not  inter- 
necine wars,  in  which  the  killing  of  the  enemy  is  the  object.  The 
destruction  of  the  enemy  in  modern  war— and,  indeed,  modern  war 
itself — are  means  to  obtain  that  object  of  the  belligerent  which  lies 
beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except 
to  drive  them  in,  or  when  a  positive  order,  special  or  general,  has 
been  issued  to  that  effect. 

70.  Poison.  The  use  of  poison  in  any  manner,  be  it  to  poison 
wells,  or  food,  or  arms,  is  wholly  excluded  from  modern  warfare.  He 
that  uses  it  puts  himself  out  of  the  pale  of  the  law  and  usages  of  war. 

71.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy 
already  wholly  disabled,  or  kills  such  an  enemy,  or  who  orders  or 
encourages  soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted, 
whether  he  belongs  to  the  army  of  the  United  States  or  is  an  enemy 
captured  after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such 
as  watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  army  as  the  private  property  of  the  prisoner,  and  the  ap- 
propriation of  such  valuables  or  money  is  considered  dishonorable, 
and  is  prohibited. 


APPENDIX  A  513 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners, 
or  in  their  possession,  they  shall  be  taken  from  them,  and  the  surplus, 
after  providing  for  their  own  support,  appropriated  for  the  use  of  the 
army,  under  the  direction  of  the  commander,  unless  otherwise  ordered 
by  the  government.  Nor  can  prisoners  claim  as  private  property 
large  sums  found  and  captured  in  their  train,  although  they  had  been 
placed  in  the  private  luggage  of  the  prisoners. 

73.  Surrender  of  Arms.  All  officers,  when  captured,  must  surrender 
their  side-arms  to  the  captor.  They  may  be  restored  to  the  prisoner 
in  marked  cases,  by  the  commander,  to  signalize  admiration  of  his 
distinguished  bravery,  or  approbation  of  his  humane  treatment  of 
prisoners  before  his  capture.  The  captured  officer  to  whom  they 
may  be  restored  cannot  wear  them  during  captivity. 

74.  Ransojn  of  Prisoners.  A  prisoner  of  war  being  a  public  enemy, 
is  the  prisoner  of  the  government,  and  not  of  the  captor.  No  ransom 
can  be  paid  by  a  prisoner  of  war  to  his  individual  captor,  or  to  any 
officer  in  command.  The  government  alone  releases  captives,  ac- 
cording to  rules  prescribed  by  itself, 

75.  Prisoners  of  war  are  subject  to  confinement  or  imprisonment 
such  as  may  be  deemed  necessary  on  account  of  safety,  but  they  are 
to  be  subjected  to  no  other  intentional  suffering  or  indignity.  The 
confinement  and  mode  of  treating  a  prisoner  may  be  varied  during 
his  captivity  according  to  the  demands  of  safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food 
whenever  practicable,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  gov- 
ernment, according  to  their  rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be  shot  or  otherwise  killed 
in  his  flight ;  but  neither  death  nor  any  other  punishment  shall  be 
inflicted  upon  him  simply  for  his  attempt  to  escape,  which  the  law  of 
war  does  not  consider  a  crime.  Stricter  means  of  security  shall  be 
used  after  an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  the  conspirators  may  be  rigorously  pun- 
ished, even  with  death  ;  and  capital  punishment  may  also  be  inflicted 
upon  prisoners  of  war  discovered  to  have  plotted  rebellion  against 
the  authorities  of  the  captors,  whether  in  union  with  fellow-prisoners 
or  other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any 
33  . 


514  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

promise  on  their  honor,  forcibly  or  otherwise  escape,  and  are  capt- 
ured again  in  battle,  after  having  rejoined  their  own  army,  they 
shall  not  be  punished  for  their  escape,  but  shall  be  treated  as  simple 
prisoners  of  war,  although  they  will  be  subjected  to  stricter  confine- 
ment. 

79.  Every  captured  wounded  enemy  shall  be  medically  treated, 
according  to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from  giving  to 
the  enemy  information  concerning  their  own  army,  and  the  modern 
law  of  war  permits  no  longer  the  use  of  any  violence  against  prison- 
ers in  order  to  extort  the  desired  informationor  to  punish  them  for 
having  given  false  information. 

Section  IV 

PARTISANS — ARMED    ENEMIES  NOT  BELONGING  TO  THE  HOSTILE  ARMY 
— SCOUTS — ARMED    PROWLERS — WAR-REBELS 

81.  Partisans.  Partisans  are  soldiers  armed  and  wearing  the  uni- 
form of  their  army,  but  belonging  to  a  corps  which  acts  detached 
from  the  main  body  for  the  purpose  of  making  inroads  into  the  terri- 
tory occupied  by  the  enemy.  If  captured,  they  are  entitled  to  all 
the  privileges  of  the  prisoner  of  war. 

82.  Guerillas.  Men,  or  squads  of  men,  who  commit  hostilities, 
whether  by  fighting,  or  inroads  for  destruction  or  plunder,  or  by 
raids  of  any  kind,  without  commission,  without  being  part  and  por- 
tion of  the  organized  hostile  army,  and  without  sharing  continuously 
in  the  war,  but  who  do  so  with  intermitting  returns  to  their  homes 
and  vocations,  or  with  the  occasional  assumption  of  the  semblance 
of  peaceful  pursuits,  divesting  themselves  of  the  character  or  appear- 
ance of  soldiers — such  men,  or  squads  of  men,  are  not  public  enemies, 
and  therefore,  if  captured,  are  not  entitled  to  the  privileges  of  pris- 
oners of  war,  but  shall  be  treated  summarily  as  highway  robbers  or 
pirates. 

83.  Scouts,  or  single  soldiers,  if  disguised  in  the  dress  of  the 
country,  or  in  the  uniform  of  the  army  hostile  to  their  own,  employed 
in  obtaining  information,  if  found  within  or  lurking  about  the  lines 
of  the  captor,  are  treated  as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be  called,  or 
persons  of  the  enemy's  territory,  who  steal  within  the  lines  of  the 


APPENDIX   A  515 

hostile  army,  for  the  purpose  of  robbing,  killing,  or  of  destroying 
bridges,  roads,  or  canals,  or  of  robbing  or  destroying  the  mail,  or  of 
cutting  the  telegraph  wires,  are  not  entitled  to  the  privileges  of  the 
prisoner  of  war. 

85.  War-rebels.  War-rebels  are  persons  within  an  occupied  terri- 
tory who  rise  in  arms  against  the  occupying  or  conquering  army,  or 
against  the  authorities  established  by  the  same.  If  captured,  they 
may  suffer  death,  whether  they  rise  singly,  in  small  or  large  bands, 
and  whether  called  upon  to  do  so  by  their  own,  but  expelled,  govern- 
ment or  not.  They  are  not  prisoners  of  war;  nor  are  they  if  discov- 
ered and  secured  before  their  conspiracy  has  matured  to  an  actual 
rising  or  to  armed  violence. 

Section  V 

SAFE-CONDUCTS —  SPIES  —  WAR-TRAITORS  —  CAPTURED   MESSENGERS — ■ 
ABUSE   OF    THE    FLAG   OF    TRUCE 

86.  Sa/e-conducis.  All  intercourse  between  the  territories  occupied 
by  belligerent  armies,  whether  by  traffic,  by  letter,  by  travel,  or  in  any 
other  way,  ceases.  This  is  the  general  rule,  to  be  observed  without 
special  proclamation. 

Exceptions  to  this  rule,  whether  by  safe-conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  territory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government  or  by  the  highest  military 
authority. 

Contraventions  of  this  rule  are  highly  punishable. 

87.  Ambassadors  and  all  other  diplomatic  agents  of  neutral  pow- 
ers accredited  to  the  enemy  may  receive  safe-conducts  through  the 
territories  occupied  by  the  belligerents,  unless  there  are  military  rea- 
sons to  the  contrary,  and  unless  they  may  reach  the  place  of  their 
destination  conveniently  by  another  route.  It  implies  no  interna- 
tional affront  if  the  safe-conduct  is  declined.  Such  passes  are  usually 
given  by  the  supreme  authority  of  the  state,  and  not  by  subordinate 
officers. 

88.  Spies.  A  spy  is  a  person  who  secretly,  in  disguise  or  under 
false  pretence,  seeks  information  with  the  intention  of  communi- 
cating it  to  the  enemy. 

The  spy  is  punishable  with  death  by  hanging  by  the  neck,  whether 


5l6  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

or  not  he  succeed  in  obtaining  the  information  or  in  conveying  it 
to  the  enemy. 

89.  If  a  citizen  of  the  United  States  obtains  information  in  a 
legitimate  manner  and  betrays  it  to  the  enemy,  be  he  a  military  or 
civil  officer,  or  a  private  citizen,  he  shall  suffer  death. 

90.  War -traitors.  A  traitor  under  the  law  of  war,  or  a  war- 
traitor,  is  a  person  in  a  place  or  district  under  martial  law  who,  un- 
authorized by  the  military  commander,  gives  information  of  any  kind 
to  the  enemy,  or  holds  intercourse  with  him. 

91.  The  war-traitor  is  always  severely  punished.  If  his  offence 
consists  in  betraying  to  the  enemy  anything  concerning  the  condi- 
tion, safety,  operations,  or  plans  of  the  troops  holding  or  occupying 
the  place  or  district,  his  punishment  is  death. 

92.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government,  from  which  he  is 
separated  by  the  hostile  army,  or  to  the  army  of  his  government, 
he  is  a  war-traitor,  and  death  is  the  penalty  of  his  offence. 

93.  Guides.  All  armies  in  the  field  stand  in  need  of  guides,  and 
impress  them  if  they  cannot  obtain  them  otherwise. 

94.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide 
is  punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves 
as  a  guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war- 
traitor,  and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  coun- 
try commits  treason,  and  will  be  dealt  with  according  to  the  law  of 
his  country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have  misled  inten- 
tionally, may  be  put  to  death. 

98.  Communications  with  the  Enemy.  All  unauthorized  or  secret 
communication  with  the  enemy  is  considered  treasonable  by  the  law 
of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign 
visitors  in  the  same,  can  claim  no  immunity  from  this  law.  They 
may  communicate  with  foreign  parts,  or  with  the  inhabitants  of  the 
hostile  country  so  far  as  the  military  authority  permits,  but  no  fur- 
ther. Instant  expulsion  from  the  occupied  territory  would  be  the 
very  least  punishment  for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  despatches  or  verbal  messages 


APPENDIX  A  517 

from  one  portion  of  the  army,  or  from  a  besieged  place,  to  another 
portion  of  the  same  army,  or  its  government,  if  armed  and  in  the 
uniform  of  his  army,  and  if  captured  while  doing  so  in  the  territory 
occupied  by  the  enemy,  is  treated  by  the  captor  as  a  prisoner  of  war. 
If  not  in  uniform,  nor  a  soldier,  the  circumstances  connected  with 
his  capture  must  determine  the  disposition  that  shall  be  made  of 
him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through  the  ter- 
ritory occupied  by  the  enemy,  to  further,  in  any  manner,  the  interests 
of  the  enemy,  if  captured,  is  not  entitled  to  the  privileges  of  the  pris- 
oner of  war,  and  may  be  dealt  with  according  to  the  circumstances 
of  the  case. 

loi.  While  deception  in  war  is  admitted  as  a  just  and  necessary 
means  of  hostility,  and  is  consistent  with  honorable  warfare,  the  com- 
mon law  of  war  allows  even  capital  punishment  for  clandestine  or 
treacherous  attempts  to  injure  an  enemy,  because  they  are  so  dan- 
gerous, and  it  is  so  difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the  criminal  law  regarding  other  offences, 
makes  no  difference  on  account  of  the  difference  of  sexes,  concern- 
ing the  spy,  the  war-traitor,  or  the  war-rebel. 

103.  Spies,  war-traitors,  and  war-rebels  are  not  exchanged  accord- 
ing to  the  common  law  of  war.  The  exchange  of  such  persons 
would  require  a  special  cartel,  authorized  by  the  government,  or,  at 
a  great  distance  from  it,  by  the  chief  commander  of  the  army  in 
the  field. 

104.  A  successful  spy  or  war- traitor,  safely  returned  to  his  own 
army,  and  afterwards  captured  as  an  enemy,  is  not  subject  to  pun- 
ishment for  his  acts  as  a  spy  or  war-traitor,  but  he  may  be  held  in 
closer  custody  as  a  person  individually  dangerous. 

Section  VI 

EXCHANGE  OF  PRISONERS — FLAGS  OF  TRUCE — FLAGS  OF  PROTECTION 

105.  Exchanges.  Exchanges  of  prisoners  take  place,  number  for 
number,  rank  for  rank,  wounded  for  wounded,  with  added  condition 
for  added  condition — such,  for  instance,  as  not  to  serve  for  a  certain 
period. 

106.  In  exchanging  prisoners  of  war,  such  numbers  of  persons  of 
inferior  rank  may  be  subsdtuted  as  an  equivalent  for  one  of  superior 


5l8  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

rank  as  may  be  agreed  upon  by  cartel,  which  requires  the  sanction 
of  the  government  or  of  the  commander  of  the  army  in  the  field. 

107.  A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the 
captor  his  rank ;  and  he  is  not  to  assume  a  lower  rank  than  belongs 
to  him,  in  order  to  cause  a  more  advantageous  exchange,  nor  a  higher 
rank,  for  the  purpose  of  obtaining  better  treatment. 

Offences  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing 
to  release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining  after  an 
exchange  has  taken  place  is  sometimes  released  either  for  the  pay- 
ment of  a  stipulated  sum  of  money,  or,  in  urgent  cases,  of  provision, 
clothing,  or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience 
to  both  belligerents.  If  no  general  cartel  has  been  concluded,  it 
cannot  be  demanded  by  either  of  them.  No  belligerent  is  obliged 
to  exchange  prisoners  of  war. 

A  cartel  is  voidable  so  soon  as  either  party  has  violated  it. 

no.  No  exchange  of  prisoners  shall  be  made  except  after  com- 
plete capture,  and  after  an  accurate  account  of  them,  and  a  list  of 
t"he  captured  officers,  has  been  taken. 

111.  Flags  of  Truce.  The  bearer  of  a  flag  of  truce  cannot  insist 
upon  being  admitted.  He  must  always  be  admitted  with  great  cau- 
tion.    Unnecessary  frequency  is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  en- 
gagement, he  can  be  admitted  as  a  very  rare  exception  only.  It  is 
no  breach  of  good  faith  to  retain  such  a  flag  of  truce,  if  admitted 
during  the  engagement.  Firing  is  not  required  to  cease  on  the  ap- 
pearance of  a  flag  of  truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an 
engagement,  is  killed  or  wounded,  it  furnishes  no  ground  of  com- 
plaint whatever. 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce 
has  been  abused  for  surreptitiously  obtaining  military  knowledge, 
the  bearer  of  the  flag  thus  abusing  his  sacred  character  is  deemed  a 

spy- 
So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is 


APPENDIX   A  519 

its  sacredness,  that  while  its  abuse  is  an  especially  heinous  offence, 
great  caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer 
of  a  flag  of  truce  as  a  spy. 

115.  Hospitals.  It  is  customary  to  designate  by  certain  flags 
(usually  yellow)  the  hospitals  in  places  which  are  shelled,  so  that 
the  besieging  enemy  may  avoid  firing  on  them.  The  same  has  been 
done  in  battles,  when  hospitals  are  situated  within  the  field  of  the 
engagement.' 

116.  Honorable  belligerents  often  request  that  the  hospitals  within 
the  territory  of  the  enemy  may  be  designated,  so  that  they  may  be 
spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags,  or 
signals  of  protection,  as  much  as  the  contingencies  and  the  necessi- 
ties of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiend- 
ishness,  to  deceive  the  enemy  by  flags  of  protection.  Such  act  of 
bad  faith  may  be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested  the  be- 
sieged to  designate  the  buildings  containing  collections  of  works 
of  art,  scientific  museums,  astronomical  observatories,  or  precious 
libraries,  so  that  their  destruction  may  be  avoided  as  much  as 
possible. 

Section  VII 

THE     PAROLE 

119.  Prisoners  of  war  may  be  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge  of  individual  good 
faith  and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who 
gives  his  parole  shall  have  been  dismissed,  wholly  or  partially,  from 
the  power  of  the  captor. 

121.  The  pledge  of  the  parole  is  always  an  individual  but  not  a 
private  act. 

122.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the 
captor  allows  to  return  to  their  country,  or  to  live  in  greater  freedom 

'  The  flags  now  used  are  those  provided  for  by  the  Geneva  Convention.  See 
Appendix  B. 


520      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

within  the  captor's  country  or  territory,  on  conditions  stated  in  the 
parole. 

123.  Release  of  prisoners  of  war  by  exchange  is  the  general  rule ; 
release  by  parole  is  the  exception. 

124.  Breaking  the  parole  is  punished  with  death  when  the  person 
breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by 
the  belligerents. 

125.  When  paroles  are  given  and  received,  there  must  be  an  ex- 
change of  two  written  documents,  in  which  the  name  and  rank  of  the 
paroled  individuals  are  accurately  and  truthfully  stated. 

126.  Commissioned  officers  only  are  allowed  to  give  their  parole, 
and  they  can  give  it  only  with  the  permission  of  their  superior,  as 
long  as  a  superior  in  rank  is  within  reach. 

127.  No  non-comniissioned  officer  or  private  can  give  his  parole 
except  through  an  officer.  Individual  paroles  not  given  through  an 
officer  are  not  only  void,  but  subject  the  individuals  giving  them  to 
the  punishment  of  death  as  deserters.  The  only  admissible  excep- 
tion is  where  individuals,  properly  separated  from  their  commands, 
have  suffered  long  confinement  without  the  possibility  of  being  pa- 
roled through  an  officer. 

128.  No  paroling  on  the  battle-field,  no  paroling  of  entire  bodies  of 
troops  after  a  battle,  and  no  dismissal  of  large  numbers  of  prisoners, 
with  a  general  declaration  that  they  are  paroled,  is  permitted  or  of 
any  value. 

129.  In  capitulations  for  the  surrender  of  strong  places  or  forti- 
fied camps,  the  commanding  officer,  in  cases  of  urgent  necessity, 
may  agree  that  the  troops  under  his  command  shall  not  fight  again 
during  the  war,  unless  exchanged. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during 
the  existing  war,  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against  the 
paroling  belligerent  or  his  allies  actively  engaged  in  the  same  war. 
These  cases  of  breaking  the  parole  are  patent  acts,  and  can  be  visited 
with  the  punishment  of  death ;  but  the  pledge  does  not  refer  to  in- 
ternal service,  such  as  recruiting  or  drilling  the  recruits,  fortifying 
places  not  besieged,  quelling  civil  commotions,  fighting  against  bel- 
ligerents unconnected  with  the  paroling  belligerents,  or  to  civil  or 
diplomatic  service  for  which  the  paroled  officer  may  be  employed. 


APPENDIX   A  521 

131.  If  the  government  does  not  approve  of  the  parole,  the  paroled 
officer  must  return  into  captivity ;  and  should  the  enemy  refuse  to 
receive  him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare,  by  a  general  order, 
whether  it  will  allow  paroling,  and  on  what  conditions  it  will  allow 
it.     Such  order  is  communicated  to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the  hostile  government 
to  parole  himself,  and  no  government  is  obliged  to  parole  prisoners 
of  war,  or  to  parole  all  captured  officers  if  it  paroles  any.  As  the 
pledging  of  the  parole  is  an  individual  act,  so  is  paroling,  on  the 
other  hand,  an  act  of  choice  on  the  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  require  of  the 
civil  officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may 
consider  necessary  for  the  safety  or  security  of  his  army;  and,  upon 
their  failure  to  give  it,  he  may  arrest,  confine,  or  detain  them. 

Section   VIII 
armistice — capitulation 

135.  Armistice.  An  armistice  is  the  cessation  of  active  hostilities 
for  a  period  agreed  upon  between  belligerents.  It  must  be  agreed 
upon  in  writing,  and  duly  ratified  by  the  highest  authorities  of  the 
contending  parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it  extends  no 
further  than  to  require  a  total  cessation  of  hostilities  along  the  front 
of  both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed,  and 
must  be  rigidly  adhered  to  by  both  parties.  If  either  party  violates 
any  express  condition,  the  armistice  may  be  declared  null  and  void 
by  the  other. 

137.  An  armistice  may  be  general,  and  valid  for  all  points  and  lines 
of  the  belligerents ;  or  special — that  is,  referring  to  certain  troops  or 
certain  localities  only. 

An  armistice  may  be  concluded  for  a  definite  time  ;  or  for  an  in- 
definite time,  during  which  either  belligerent  may  resume  hostilities 
on  giving  the  notice  agreed  upon  to  the  other. 

138.  The  motives  which  induce  the  one  or  the  other  belligerent  to 
conclude  an  armistice,  whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace  or  to  prepare  during  the  armistice  for  a  more  vigorous 


^22  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

prosecution  of  the  war,  do  in  no  way  affect  the  character  of  the  armis- 
tice itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from  the  day  of 
the  agreed  commencement ;  but  the  officers  of  the  armies  are  respon- 
sible from  the  day  only  when  they  receive  official  information  of  its 
existence. 

140.  Commanding  officers  have  the  right  to  conclude  armistices 
binding  on  the  district  over  which  their  command  extends ;  but  such 
armistice  is  subject  to  the  ratification  of  the  superior  authority,  and 
ceases  so  soon  as  it  is  made  known  to  the  enemy  that  the  armistice 
is  not  ratified,  even  if  a  certain  time  for  the  elapsing  between  giving 
notice  of  cessation  and  the  resumption  of  hostilities  should  have  been 
stipulated  for. 

141.  Intercourse.  It  is  incumbent  upon  the  contracting  parties  of 
an  armistice  to  stipulate  what  intercourse  of  persons  or  traffic  be- 
tween the  inhabitants  of  the  territories  occupied  by  the  hostile  armies 
shall  be  allowed,  if  any. 

If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as  dur- 
ing actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace  ;  it  is  only 
the  suspension  of  military  operations  to  the  extent  agreed  upon  by 
the  parties. 

143.  When  an  armistice  is  concluded  between  a  fortified  place  and 
the  army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  sub- 
ject that  the  besieger  must  cease  all  extension,  perfection,  or  advance 
of  his  attacking  works,  as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  ofopinion  among  martial  jurists  whether 
the  besieged  have  the  right  to  repair  breaches  or  to  erect  new  works 
of  defence  within  the  place  during  an  armistice,  this  point  should  be 
determined  by  express  agreement  between  the  parties. 

144.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no 
right  to  demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  am- 
munition in  his  possession,  during  the  time  which  elapses  between 
the  signing  and  the  execution  of  the  capitulation,  unless  otherwise 
stipulated  in  the  same. 

145.  When  an  armistice  is  clearly  broken  by  one  of  the  parties, 
the  other  party  is  released  from  all  obligation  to  observe  it. 

146.  Prisoners  taken  in  the  act  of  breaking  an  armistice  must  be 
treated  as  prisoners  of  war,  the  officer  alone  being  responsible  who 


APPENDIX  A  523 

gives  the  order  for  such  a  violation  of  an  armistice.  The  highest 
authority  of  the  belligerent  aggrieved  may  demand  redress  for  the  in- 
fraction of  an  armistice. 

147.  Belligerents  sometimes  conclude  an  armistice  while  their 
plenipotentiaries  are  met  to  discuss  the  conditions  of  a  treaty  of 
peace ;  but  plenipotentiaries  may  meet  without  a  preliminary  armis- 
tice ;  in  the  latter  case,  the  war  is  carried  on  without  any  abatement. 

Section  IX 

ASSASSINATION 

148.  Assassination.  The  law  of  war  does  not  allow  proclaiming 
either  an  individual  belonging  to  the  hostile  army,  or  a  citizen,  or  a 
subject  of  the  hostile  government,  an  outlaw,  who  may  be  slain  with- 
out trial  by  any  captor,  any  more  than  the  modern  law  of  peace  al- 
lows such  international  outlawry;  on  the  contrary,  it  abhors  such 
outrage.  The  sternest  retaliation  should  follow  the  murder  com- 
mitted in  consequence  of  such  proclamation,  made  by  whatever 
authority.  Civilized  nations  look  with  horror  upon  offers  of  rewards 
for  the  assassination  of  enemies,  as  relapses  into  barbarism. 

Section  X 

INSURRECTION — CIVIL    WAR — REBELLION 

149.  Insurrection.  Insurrection  is  the  rising  of  people  in  arms 
against  their  government,  or  a  portion  of  it,  or  against  one  or  more 
of  its  laws,  or  against  an  officer  or  officers  of  the  government.  It 
may  be  confined  to  mere  armed  resistance,  or  it  may  have  greater 
ends  in  view. 

150.  Civil  War.  Civil  war  is  war  between  two  or  more  portions 
of  a  country  or  state,  each  contending  for  the  mastery  of  the  whole, 
and  each  claiming  to  be  the  legitimate  government.  The  term  is 
also  sometimes  applied  to  war  of  rebellion,  when  the  rebellious  prov- 
inces or  portions  of  the  state  are  contiguous  to  those  containing 
the  seat  of  government. 

151.  Rebellion.  The  term  rebellion  is  applied  to  an  insurrection  of 
large  extent,  and  is  usually  a  war  between  the  legitimate  government 
of  a  country  and  portions  or  provinces  of  the  same  which  seek  to 


524  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

throw  off  their  allegiance  to  it,  and  set  up  a  government  of  their 
own. 

152.  When  humanity  induces  the  adoption  of  the  rules  of  regular 
war  towards  rebels,  whether  the  adoption  is  partial  or  entire,  it  does 
in  no  way  whatever  imply  a  partial  or  complete  acknowledgment 
of  their  government,  if  they  have  set  up  one,  or  of  them,  as  an  inde- 
pendent or  sovereign  power.  Neutrals  have  no  right  to  make  the 
adoption  of  the  rules  of  war  by  the  assailed  government  towards 
rebels  the  ground  of  their  own  acknowledgment  of  the  revolted  peo- 
ple as  an  independent  power. 

153.  Treating  captured  rebels  as  prisoners  of  war,  exchanging 
them,  concluding  of  cartels,  capitulations,  or  other  warlike  agree- 
ments with  them  ;  addressing  officers  of  a  rebel  army  by  the  rank 
they  may  have  in  the  same  ;  accepting  flags  of  truce  ;  or,  on  the 
other  hand,  proclaiming  martial  law  in  their  territory,  or  levying  war- 
taxes  or  forced  loans,  or  doing  any  other  act  sanctioned  or  demanded 
by  the  law  and  usages  of  public  war  between  sovereign  belligerents, 
neither  proves  nor  establishes  an  acknowledgment  of  the  rebellious 
people,  or  of  the  government  which  they  may  have  erected,  as  a  pub- 
lic or  sovereign  power.  Nor  does  the  adoption  of  the  rules  of  war 
towards  rebels  imply  an  engagement  with  them  extending  beyond 
the  limits  of  these  rules.  It  is  victory  in  the  field  that  ends  the 
strife  and  settles  the  future  relations  between  the  contending  parties. 

154.  Treating  in  the  field  the  rebellious  enemy  according  to  the 
law  and  usages  of  war  has  never  prevented  the  legitimate  govern- 
ment from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for 
high-treason,  and  from  treating  them  accordingly,  unless  they  are 
included  in  a  general  amnesty. 

155.  All  enemies  in  regular  war  are  divided  into  two  general 
classes  —that  is  to  say,  into  combatants  and  non-combatants,  or  un- 
armed citizens  of  the  hostile  government. 

The  military  commander  of  the  legitimate  government,  in  a  war 
of  rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted 
portion  of  the  country  and  the  disloyal  citizen.  The  disloyal  citi- 
zens may  further  be  classified  into  those  citizens  known  to  sympa- 
thize with  the  rebellion,  without  positively  aiding  it,  and  those  who, 
without  taking  up  arms,  give  positive  aid  and  comfort  to  the  rebel- 
lious enemy,  without  being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that  the  mill- 


APPENDIX   A  525 

tary  commander  protect  the  manifestly  loyal  citizens,  in  revolted 
territories,  against  the  hardships  of  the  war,  as  much  as  the  common 
misfortune  of  all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as  much  as  lies 
within  his  power,  on  the  disloyal  citizens  of  the  revolted  portion  or 
province,  subjecting  them  to  a  stricter  police  than  the  non-comba- 
tant enemies  have  to  suffer  in  regular  war  ;  and  if  he  deems  it  appro- 
priate, or  if  his  government  demands  of  him,  that  every  citizen  shall, 
by  an  oath  of  allegiance,  or  by  some  other  manifest  act,  declare  his 
fidelity  to  the  legitimate  government,  he  may  expel,  transfer,  im- 
prison, or  fine  the  revolted  citizens  who  refuse  to  pledge  themselves 
anev/  as  citizens  obedient  to  the  law  and  loyal  to  the  government. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be 
placed  upon  such  oaths,  the  commander  or  his  government  have  the 
right  to  decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States 
against  the  lawful  movements  of  their  troops  is  levying  war  against 
the  United  States,  and  is  therefore  treason. 


APPENDIX   B 

THE  GENEVA  CONVENTION  FOR  THE  AMELIORATION 
OF  THE  CONDITION  OF  THE  SICK  AND  WOUNDED 
OF  ARMIES  IN  THE   FIELD' 

Character  and  Purpose 

The  treatment  of  the  sick  and  wounded  in  war  is  now  largely 
regulated  by  the  requirements  of  the  Geneva  Convention  of  August 
22,  1864,  the  operation  of  which  has  been  extended  to  hostilities 
at  sea  by  the  Additional  Articles  of  October  10,  1868,  and  by  the 
Convention  in  respect  to  the  rules  of  maritime  warfare  which  were 
adopted  by  the  Peace  Conference  at  The  Hague  in  1899.  Nearly  all 
civilized  states  are  now  parties  to  the  operation  of  these  agree- 
ments, the  efficiency  of  which,  as  agencies  for  the  amelioration  of 
the  condition  of  the  sick  and  wounded,  has  been  fully  established 
in  the  great  international  conflicts  which  have  taken  place  during  the 
generation  that  has  elapsed  since  their  original  adoption. 


'  The  Convention  proper  was  signed 
at  Geneva,  Switzerland,  August  2,  1864. 
It  was  signed  by  representatives  of  the 
following  powers — i.  e. ,  the  Swiss  Con- 
federation, Baden,  Belgium,  Denmark, 
Spain,  France,  Hesse,  Italy,  the  Nether- 
lands, Portugal,  Prussia,  and  Wurteni- 
berg.     The  ratifications  of  tlie  contract- 
ing parties  were  exchanged  at  Geneva 
on  June  22,  1865.     In  accordance  with 
the  invitation    contained  in    the  Ninth 
Article  of  the  Convention,  the  following 
powers  acceded    to    the  Convention  at 
various  dates  between  1864  and  1880. 
These    were :    Sweden,    December  13 
1864 ;    Greece,    January    5-17,     1865 
Great    Britain,     February     18,     1865 
Mecklenburg-Schwerin,  March  9,  1865 
Turkey,    July   5,    1865  ;    Wiirtemberg 
June  2,  1866  ;  Hesse,  June  22,   1866 


Bavaria,  June  30,  1866  ;  Austria,  July 
21,  1S66  ;  Russia,  May  10-22,  1867 
Persia,  December  5,  1874  ;  Roumania 
November  18-30,  1874;  Salvador,  De 
cember  30,  1874  ;  Montenegro,  Novem 
ber  17-29,  1875  ;  Servia,  March  24 
1876  ;  Bolivia,  October  16,  1879  ;  Chili 
November  15,  1879  ;  Argentine  Repub 
lie,  November  25,  1879  ;  Peru,  April  22 
1880;  United  States,  March  i,  1882. 

For  reports  and  discussions  in  respect 
to  the  operations  of  the  Convention  in 
time  of  war,  see  vol.  iv.  Revue  de  Droit 
International,  p.  325  ;  vol.  xviii.  Ibid. 
P-  545 ;  ^'ol-  xi^'-  Ibid.  p.  633 ;  vol.  xx. 
Ibid.  p.  624  ;  vol.  xxi.  Ibid.  pp.  88,  89; 
vol.  xxvi.  Ibid.  pp.  9,  25,  38,  47,  348  ; 
vol.  xxix.  Ibid.  pp.  no,  II2,  318,  320, 
571,  576. 


APPENDIX  B  527 

It  is  the  purpose  of  these  conventions  to  ameliorate  the  condition 
of  individuals  of  the  belligerent  armies  who  have  been  placed  hois  de 
combat  by  disease  or  wounds.  With  the  projectiles  or  other  instru- 
ments by  means  of  which  the  wounds  are  inflicted,  and  with  the 
sanitation  of  armies  and  navies,  the  agreements  above  referred  to 
have  nothing  to  do.  These  are  questions  pertaining  to  the  opera- 
tions of  war  which  are  regulated  in  part  by  declarations  and  other 
international  agreements,  and  in  part  by  the  rules  and  usages  of  war 
which  have  been  generally  accepted  by  civilized  states,  and  are 
habitually  applied  by  them  in  the  conduct  of  hostilities  on  land  and 
sea.  The  rules  of  the  Geneva  Convention,  and  other  undertakings 
of  Hke  character,  become  operative  only  when  individual  combatants 
have  been  disabled  by  wounds  or  disease.  Their  effect  is  to  confer 
certain  privileges  and  immunities  upon  the  sick  and  wounded,  as  a 
class,  and  to  secure  to  the  places  in  which  they  are  collected  and 
cared  for,  and  to  the  persons  who  attend  them,  as  complete  an  im- 
munity from  the  effects  of  hostile  operations  as  it  is  possible  to 
accord  them  under  the  circumstances  of  each  particular  case.  Of 
the  nature  and  extent  of  the  immunity  to  be  accorded,  each  belliger- 
ent is  to  be  the  judge,  in  so  far  as  his  own  operations  are  concerned; 
and  in  the  conduct  of  those  operations  he  must  weigh,  on  the  one 
hand,  the  strict  necessities  of  the  military  situation,  and,  on  the 
other,  the  imperative  demands  of  suffering  humanity  and  the  solemn 
obligations  of  treaties  entered  into  with  a  view  to  ameliorate  the 
hardships  of  war  in  respect  to  individual  combatants  who  by  the 
casualty  of  war  are  no  longer  able  to  assist  in  its  prosecution. 

Field  of  Operation.  The  requirements  of  the  Convention  have  no 
operation  upon  the  battle-field  proper  during  the  pendency  of  the 
action.  This  is  because  of  the  impossibility  of  affording  protection, 
within  the  zone  of  fire,  to  individuals  wearing  the  distinctive  badge 
of  the  society ;  indeed,  since  the  adoption  of  magazine  small-arms 
and  quick-firing  guns  in  modern  armies,  the  zone  of  fire  has  become 
so  deadly  that  it  has  become  practically  impossible  to  attempt  to 
remove  the  wounded  from  the  field  during  the  progress  of  the  action. 
If  the  flag  of  the  society  is  in  view,  however,  as  in  the  case  of  the 
bombardment  of  a  fortified  place,  or  on  the  battle-field  itself  after 
the  action  has  ceased,  or  has  shifted  to  another  part  of  the  field, 
good  faith  requires  a  belligerent  to  use  his  utmost  endeavors  to 
cause  it  to  be  respected.     The  opposing  belligerent  is  under  an 


■528  THE   ELEMENTS   OF   INTERNATIONAL    LAW 

equal  obligation  to  see  to  it  that  the  distinctive  flag  of  the  convention 
is  not  abused  or  used  for  an  illegitimate  purpose. 

The  Convention  itself  is  silent  in  respect  to  the  dividing -line 
between  the  battle-field  proper  and  the  zone  within  which  its  terms 
become  applicable  to  the  sick  and  wounded  and  to  the  places  in 
which  they  are  collected  and  cared  for.  The  terms  of  the  first  article 
of  the  original  instrument,  however,  that  "  ambulances  and  military 
hospitals  shall  be  acknowledged  to  be  neuter,"  have  given  occasion 
for  an  interpretation  of  the  agreement  in  this  regard  which  has  been 
generally  acted  upon  by  the  civilized  powers,  and  which  may  be 
stated  as  follows :  At  such  a  distance  in  rear  of  the  firing-line  as  it  is 
possible  to  find  reasonable  shelter  from  the  fire  of  the  enemy,  and  its 
successive  supporting  formations,  what  are  called  the  first  dressing- 
stations  are  established,  where  the  wounded  are  collected  with  a 
view  to  receiving  surgical  attention  before  they  are  transported  to  the 
"  ambulances  and  military  hospitals  "  which  are  neutralized  by  the 
express  terms  of  the  Convention.  In  front  of  the  line  thus  rudely 
determined  the  Convention  is  inoperative;  behind  it,  where  the  ambu- 
lances and  field  hospitals  have  been  established,  its  terms  are  fully 
applicable  to,  and  obligatory  upon,  both  belligerents.  In  rear  of  the 
line  so  established  the  immunity  is,  or  should  be,  complete ;  in  front 
of  it  the  wounded  are  protected  during  the  continuance  of  the  action, 
not  by  the  terms  of  the  Geneva  Convention,  but  by  the  rules  of 
international  law.  Those  rules  forbid,  first,  the  use  of  instruments 
of  war  which  inflict  wounds  of  needless  or  unnecessary  cruelty;  and, 
secondly,  the  infliction  of  any  injury  whatever  upon  a  person  already 
hors  de  combat.  They  convert  the  right  to  kill  into  the  duty  to  save, 
the  power  to  inflict  injury  into  an  obligation  to  relieve  suffering;  and 
require  that  each  belligerent  shall  accord  to  the  wounded  of  the 
enemy  the  same  measure  of  relief  that  is  extended  to  his  own. 

Restrictions  upon  Us  Operation.  While  the  terms  of  the  Convention 
confer  an  extensive  immunity  upon  hospitals  and  ambulances,  that 
immunity  is  withdrawn  if  they  are  used  for  hostile  purposes,  or  are 
occupied  by  a  military  force.  This  clause  operates  to  inflict  some 
hardship  upon  the  sick  and  wounded,  as  the  protection  of  the  Con- 
vention is  withdrawn,  even  in  the  case  where  a  mere  police  or  provost 
guard  is  established  in  an  ambulance  or  hospital  with  a  view  to 
protect  its  inmates  from  robbery  or  spoliation.  Although  hospitals 
and  ambulances  are  expressly  exempted  from  capture  by  the  terms 


APPENDIX    B  529 

of  the  Convention,  hospital  and  medical  property  is  not  so  exempt, 
and  may  be  captured  by  either  belligerent.  Hospital  ships,  which 
were  liable  to  capture  by  the  terms  of  the  Convention  of  October  10, 
1888,  were  exempted  from  belligerent  seizure  by  the  terms  of  The 
Hague  Convention  of  1899.  Although  ambulances  and  hospitals  are 
declared  to  be  neutral,  their  technical  control  and  management  pass 
by  the  fact  of  occupation  to  the  occupying  belligerent,  and,  so  long 
as  they  continue  to  be  used  for  the  care  of  the  sick  and  wounded,  the 
classes,  or  cases  to  be  cared  for,  in  a  particular  establishment  are  deter- 
mined by  the  belligerent  in  whose  control  they  are  for  the  time  being.' 


Art.  I.  Ambulances  and  military  hospitals  shall  be  acknowledged 
to  be  neuter,  and  as  such  shall  be  protected  and  respected  by  bel- 
ligerents so  long  as  any  sick  or  wounded  may  be  therein.  Such 
neutrality  shall  cease  if  the  ambulances  or  hospitals  should  be  held 
by  a  military  force. 

Art.  n.  Persons  employed  in  hospitals  and  ambulances,  com- 
prising the  staff  for  superintendence,  medical  service,  administra- 
tion, transport  of  wounded,  as  well  as  chaplains,  shall  participate  in 
the  benefit  of  neutrality  while  so  employed,  and  so  long  as  there 
remain  any  wounded  to  bring  in  or  to  succor. 

Art.  in.  The  persons  designated  in  the  preceding  article  may, 
even  after  occupation  by  the  enemy,  continue  to  fulfil  their  duties 
in  the  hospital  or  ambulance  which  they  serve,  or  may  withdraw  in 
order  to  rejoin  the  corps  to  which  they  belong. 

Under  such  circumstances,  when  these  persons  shall  cease  from 
their  functions,  they  shall  be  delivered  by  the  occupying  army  to  the 
outposts  of  the  enemy. 

Art.  IV.  As  the  equipment  of  military  hospitals  remains  subject  to 
the  laws  of  war,  persons  attached  to  such  hospitals  cannot,  in  with- 
drawing, carry  away  any  articles  but  such  as  are  their  private  property. 

Under  the  same  circumstances  an  ambulance  shall,  on  the  con- 
trary, retain  its  equipment. 

Art.  V.  Inhabitants  of  the  country  who   may  bring  help  to  the 

'  For  discussions  of  the  terms  of  the  §§  2161-2165  ;  II   Ferguson,  g§  293- 

several  conventions  having  for  their  ob-  295  ;  Heffter,  §  126,  note  ;  Risley,  pp. 

ject  the  amelioration  of  the  condition  of  132,  133  ;   Hall,  §§  130,  187  •  I  Guelle 

the  sick  and  wounded  in  time  of  war,  pp.  144-186. 
see  Bluntschli,  pp.  586-592  ;  IV  Calvo, 


530     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

wounded  shall  be  respected,  and  shall  remain  free.  The  generals 
of  the  belligerent  powers  shall  make  it  their  care  to  inform  the 
inhabitants  of  the  appeal  addressed  to  their  humanity,  and  the  neu- 
trality which  will  be  the  consequence  of  it. 

Any  wounded  man  entertained  and  taken  care  of  in  a  house  shall 
be  considered  a  protection  thereto.  Any  inhabitant  who  shall  have 
entertained  wounded  men  in  his  house  shall  be  exempted  from  the 
quartering  of  troops,  as  well  as  from  a  part  of  the  contributions  of 
war  which  may  be  imposed. 

Art.  VI.  Wounded  or  sick  soldiers  shall  be  entertained  and  taken 
care  of,  to  whatever  nation  they  may  belong. 

Commanders-in-chief  shall  have  the  power  to  deliver  immediately, 
to  the  outposts  of  the  enemy,  soldiers  who  have  been  wounded  in  an 
engagement,  when  circumstances  permit  this  to  be  done,  and  with  the 
consent  of  both  parties. 

Those  who  are  recognized,  after  their  wounds  are  healed,  as  in- 
capable of  serving,  shall  be  sent  back  to  their  own  country. 

The  others  may  also  be  sent  back,  on  condition  of  not  bearing 
arms  during  the  continuance  of  the  war. 

Evacuations,  together  with  the  persons  under  whose  direction 
they  shall  take  place,  shall  be  protected  by  an  absolute  neutrality. 

Art.  VII.  A  distinctive  and  uniform  flag  shall  be  adopted  for  hos- 
pitals, ambulances,  and  evacuations.  It  must  on  every  occasion  be 
accompanied  by  the  national  flag.  An  arm-badge  (brassard)  shall 
also  be  allowed  for  individuals  neutralized,  but  the  delivery  thereof 
shall  be  left  to  military  authority. 

The  flag  and  arm-badge  shall  bear  a  red  cross  on  a  white  ground. 

Art.  VIII.  The  details  of  execution  of  the  present  Convention 
shall  be  regulated  by  the  commanders-in-chief  of  belligerent  armies, 
according  to  the  instructions  of  their  respective  governments,  and  in 
conformity  with  the  general  principles  laid  down  in  this  Convention. 

Art.  IX.  The  high  contracting  powers  have  agreed  to  communi- 
cate the  present  Convention  to  those  governments  which  have  not 
found  it  convenient  to  send  plenipotentiaries  to  the  International 
Convention  at  Geneva,  with  an  invitation  to  accede  thereto ;  the 
protocol  is  for  that  purpose  left  open. 

Art.  X.  The  present  Convention  shall  be  ratified,  and  the  ratifi- 
cations exchanged  at  Berne,  in  four  months,  or  sooner  if  possible. 


APPENDIX   B  531 

ADDITIONAL  ARTICLES 

Art.  I.  The  persons  designated  in  Article  II.  of  the  Convention 
shall,  after  the  occupation  by  the  enemy,  continue  to  fulfil  their  du- 
ties to  the  sick  and  wounded,  according  to  their  wants,  in  the  ambu- 
lance or  hospital  which  they  serve.  When  they  request  to  withdraw, 
the  commander  of  the  occupying  troops  shall  fix  the  time  of  depart- 
ure, which  he  shall  only  be  allowed  to  delay  for  a  short  time  in  case 
of  military  necessity. 

Art.  II.  Arrangements  will  have  to  be  made  by  the  belligerent 
powers  to  assure  to  the  neutralized  person  fallen  into  the  hands  of 
the  army  of  the  enemy  the  entire  enjoyment  of  his  salary. 

Art.  III.  Under  the  conditions  provided  for  in  Articles  I.  and  IV. 
of  the  Convention,  the  name  "  ambulance  "  '  applies  to  field  hospi- 
tals and  other  temporary  establishments,  which  follow  the  troops  on 
the  field  of  battle  to  receive  the  sick  and  wounded. 

Art.  IV.  In  conformity  with  the  spirit  of  Article  V.  of  the  Con- 
vention, and  to  the  reservations  contained  in  the  protocol  of  1864,  it 
is  explained  that  for  the  appointment  of  the  charges  relative  to  the 
quartering  of  troops,  and  of  the  contributions  of  war,  account  only 
shall  be  taken  in  an  equitable  manner  of  the  charitable  zeal  dis- 
played by  the  inhabitants. 

Art.  V,  In  addition  to  Article  VI.  of  the  Convention,  it  is  stipu- 
lated that,  with  the  reservation  of  officers  whose  detention  might  be 
important  to  the  fate  of  arms,  and  within  the  limits  fixed  by  the 
second  paragraph  of  that  article,  the  wounded  who  may  fall  into  the 
hands  of  the  enemy  shall  be  sent  back  to  their  country,  after  they 
are  cured,  or  sooner  if  possible,  on  condition,  nevertheless,  of  not 
again  bearing  arms  during  the  continuance  of  the  war. 

Art.  VI,  The  boats  which,  at  their  own  risk  and  peril,  during 
and  after  an  engagement,  pick  up  the  shipwrecked  or  wounded,  or 
which,  having  picked  them  up,  convey  them  on  board  a  neutral  or 
hospital  ship,  shall  enjoy,  until  the  accomplishment  of  their  mission, 
the  character  of  neutrality,  as  far  as  the  circumstances  of  the  en- 
gagement and  the  position  of  the  ships  engaged  will  permit. 


'  This  interpretation   is   of  especial      applied  to  a  vehicle  for  the  transporta- 
importance  in  the  United  States,  where      tion  of  the  sick  and  wounded, 
the    term     "ambulance"    is    generally 


532  THE   ELEMENTS   OF   INTERNATIONAL    LAW 

The  appreciation  of  these  circumstances  is  intrusted  to  the  hu- 
manity of  all  the  combatants.  The  wrecked  and  wounded  thus 
picked  up  and  saved  must  not  serve  again  during  the  continuance 
of  the  war. 

Art.  VII.  The  religious,  medical,  and  hospital  staff  of  any  capt- 
ured vessel  are  declared  neutral,  and,  on  leaving  the  ship,  may  re- 
move the  articles  and  surgical  instruments  which  are  their  private 
property. 

Art.  VIII.  The  staff  designated  in  the  preceding  article  must  con- 
tinue to  fulfil  their  functions  in  the  captured  ship,  assisting  in  the 
removal  of  the  wounded  made  by  the  victorious  party ;  they  will  then 
be  at  liberty  to  return  to  their  country,  in  conformity  with  the  second 
paragraph  of  the  first  additional  article. 

The  stipulations  of  the  second  additional  article  are  applicable  to 
the  pay  and  allowance  of  the  staff. 

Art.  IX.  The  military  hospital  ships  remain  under  martial  law  in 
all  that  concerns  their  stores  ;  they  become  the  property  of  the  captor, 
but  the  latter  must  not  divert  them  from  their  special  appropriation 
during  the  continuance  of  the  war. 

Art.  X.  Any  merchantman,  to  whatever  nation  she  may  belong, 
charged  exclusively  with  removal  of  sick  and  wounded,  is  protected 
by  neutrality,  but  the  mere  fact,  noted  on  the  ship's  books,  of  the 
vessel  having  been  visited  by  an  enemy's  cruiser,  renders  the  sick 
and  wounded  incapable  of  serving  during  the  continuance  of  the 
war.  The  cruiser  shall  even  have  the  right  of  putting  on  board  an 
officer  in  order  to  accompany  the  convoy,  and  thus  verify  the  good 
faith  of  the  operation. 

If  the  merchant  ship  also  carries  a  cargo,  her  neutrality  will  still 
protect  it,  provided  that  such  cargo  is  not  of  a  nature  to  be  confis- 
cated by  the  belligerent. 

Art.  XI.  Wounded  or  sick  sailors  and  soldiers,  when  embarked, 
to  whatever  nation  they  belong,  shall  be  protected  and  taken  care 
of  by  their  captors. 

Their  return  to  their  own  country  is  subject  to  the  provisions  of 
Article  VI.  of  the  Convention,  and  of  the  Additional  Article  V. 

Art.  XII.  The  distinctive  flag  to  be  used  with  the  national  flag, 
in  order  to  indicate  any  vessel  or  boat  which  may  claim  the  ben- 
efit of  neutrality,  in  virtue  of  the  principles  of  this  Convention, 
is  a  white  flag  with  a  red  cross.     The  belligerents  may  exercise 


APPENDIX   B  533 

in  this  respect  any  mode  of  verification  which  they  may  deem  nec- 
essary. 

Military  hospital  ships  shall  be  distinguished  by  being  painted 
white  outside,  with  green  strake. 

Art.  XIII.  The  hospital  ships  which  are  equipped  at  the  expense 
of  the  aid  societies  recognized  by  the  governments  signing  this  Con- 
vention, and  which  are  furnished  with  a  commission  emanating  from 
the  sovereign,  who  shall  have  given  express  authority  for  their  being 
fitted  out,  and  with  a  certificate  from  the  proper  naval  authority  that 
they  have  been  placed  under  his  control  during  their  fitting-out  and 
on  their  final  departure,  and  that  they  were  then  appropriated  solely 
to  the  purpose  of  their  mission,  shall  be  considered  neutral,  as  well 
as  the  whole  of  their  staff.  They  shall  be  recognized  and  protected 
by  the  belligerents. 

They  shall  make  themselves  known  by  hoisting,  together  with  their 
national  flag,  the  white  flag  with  a  red  cross.  The  distinctive  mark 
of  their  staff,  while  performing  their  duties,  shall  be  an  armlet  of  the 
same  colors.  The  outer  painting  of  these  hospital  ships  shall  be  white, 
with  red  strake. 

These  ships  shall  bear  aid  and  assistance  to  wounded  and  wrecked 
belligerents,  without  distinction  of  nationality. 

They  must  take  care  not  to  interfere  in  any  way  with  the  move- 
ments of  the  combatants.  During  and  after  the  battle  they  must  do 
their  duty  at  their  own  risk  and  peril. 

The  belligerents  shall  have  the  right  of  controlling  and  visiting 
them  ;  they  will  be  at  liberty  to  refuse  their  assistance,  to  order  them 
to  depart,  and  to  detain  them  if  the  exigencies  of  the  case  require 
such  a  step. 

The  wounded  and  wrecked  picked  up  by  these  ships  cannot  be  re- 
claimed by  either  of  the  combatants,  and  they  will  be  required  not 
to  serve  during  the  continuance  of  the  war. 

Art.  XIV.  In  naval  wars  any  strong  presumption  that  either  bel- 
ligerent takes  advantage  of  the  benefits  of  neutrality,  with  any  other 
view  than  the  interest  of  the  sick  and  wounded,  gives  the  other  bel- 
ligerent, until  proof  to  the  contrary,  the  right  of  suspending  the  Con- 
vention as  regards  such  belligerent. 

Should  this  presumption  become  a  certainty,  notice  may  be  given 
to  such  belligerent  that  the  Convention  is  suspended  with  regard  to 
him  during:  the  whole  continuance  of  the  war. 


534 


THE  ELEMENTS  OF  INTERNATIONAL  LAW 


Art.  XV.  The  present  act  shall  be  drawn  up  in  a  single  original 
copy,  which  shall  be  deposited  in  the  archives  of  the  Swiss  Con- 
federation."   

Application  of  the  Rules  of  the  Convention  by  the  United  States  during 
the  War  of  i8gS  with  Spain.  With  a  view  to  secure  observance  of 
the  rules  of  the  Convention,  the  United  States  Government,  on  May 
17,  1898,  issued  orders  to  its  forces  in  the  field,  containing  such  ex- 
tracts from  the  text  of  the  Convention  as  were  necessary  to  insure 
its  correct  and  uniform  execution.  These  instructions  were  accom- 
panied by  the  following  regulations: 

"  I.  All  persons  connected  with  the  Medical  Department  of  the 
army  in  the  field,  or  referred  to  in  Article  II.  of  the  Treaty,  shall 
wear  habitually  during  the  war,  on  the  left  sleeve  of  the  coat,  mid- 
way between  the  shoulder  and  elbow,  a  brassard,  or  arm-badge,  con- 
sisting of  a  red  cross  on  a  white  ground. 

"2.  All  hospitals,  ambulances,  and  field  stations  of  the  Medical 


'  The  Additional  Articles  were  agreed 
to  and  signed  at  Geneva  on  October  20, 
186S,  by  the  duly  accredited  representa- 
tives of  the  following  powers — /.  c. , 
Great  Britain,  Austria,  Baden,  Bavaria, 
Belgium,  Denmark,  France,  Italy,  the 
Netherlands,  the  North  German  Con- 
federation, Sweden,  Norway,  Switzer- 
land, Turkey,  and  Wurtemberg.  The 
Convention  was  acceded  to  by  the 
United  States  on  March  i,  1S82. 

In  the  published  English  text,  from 
which  this  version  of  tlie  Additional 
Articles  is  taken,  the  following  para- 
graph appears  in  continuation  of  Article 
IX.  It  is  not  found  in  the  original 
French  text  adopted  by  the  Geneva 
Conference,  October  20,  1868. 

"  The  vessels  not  equipped  for  fight- 
ing which,  during  peace,  the  govern- 
ment shall  have  officially  declared  to  be 
intended  to  serve  as  floating  hospital 
ships,  shall,  however,  enjoy  during  the 
war  complete  neutrality,  both  as  regards 
stores,  and  also  as  regards  their  staff, 
provided  their  equipment  is  exclusively 
appropriated  to  the  special  service  on 
which  they  are  employed. 

"By  an  instruction  sent  to  the  Unit- 


ed States  minister  at  Berne,  January  20, 
1883,  the  right  is  reserved  to  omit  this 
paragraph  from  the  English  text,  and 
to  make  any  other  necessary  corrections, 
if  at  any  time  hereafter  the  Additional 
Articles  shall  be  completed  by  the  ex- 
change of  the  ratifications  thereof  be- 
tween the  several  signatory  and  adher- 
ing powers.  The  President  of  the  United 
States,  in  his  proclamation  announcing 
the  accession  of  that  power  to  the  Ge- 
neva Convention,  reserves  the  promul- 
gation of  the  Additional  Articles  until 
the  exchange  of  the  ratifications  thereof, 
between  the  several  contracting  states, 
shall  have  been  effected,  and  the  said 
additional  articles  shall  have  acquired 
full  force  and  effect  as  an  international 
treaty."  —  Statutes  at  Large  of  the 
United  States,  1882,  1883,  pp.  126-137. 
For  correspondence  in  respect  to  the 
adoption  of  the  red  crescent  by  Turkey, 
see  For.  Rel.  of  the  U.  S.  1877,-  p.  616. 
For  papers  in  relation  to  the  practical 
working  of  the  Convention,  see  vol,  xix. 
Revue  de  Droit  International,  p.  77  ; 
vol.  xxiii.  Ibid.  pp.  88-90 ;  vol.  xxvj. 
Ibid.  pp.  9-51. 


APPENDIX   B  535 

Department  will  habitually  display  the  Red  Cross  flag  accompanied 
by  the  national  flag. 

"3.  Permits,  in  duplicate,  for  civilians  to  be  present  with  the 
army,  in  the  service  of  the  Medical  Department,  may  be  given  by 
authority  of  a  division  commander ;  one  copy  of  the  permit  will  be 
retained  by  the  person  neutralized,  and  its  duplicate  should  be  for- 
warded promptly  to  the  chief  surgeon  of  the  army. 

"  4.  Persons  neutralized  under  this  authority  will  report  themselves 
at  once  to  the  Chief  Surgeon  of  Division  for  instructions. 

"  5.  The  wearing  of  the  arm  brassard  by  any  person  not  officially 
neutralized  is  prohibited." ' 

Hospital  Ships.  The  following  instructions  were  also  promulgated 
in  respect  to  the  hospital  ship  Relief: 

"  The  steamship  recently  purchased  for  the  use  of  the  Medical 
Department  of  the  army  as  a  hospital  ship  will  be  named  the  Relief. 
In  accordance  with  the  terms  of  the  Geneva  Convention,  the  Geneva 
cross  flag  will  be  carried  at  the  fore  whenever  the  national  flag  is 
flown,  and  the  neutrality  of  the  vessel  will  at  all  times  be  preserved 

"No  guns,  ammunition,  or  articles  contraband  of  war,  except  coal 
or  stores  necessary  for  the  movement  of  the  vessel,  shall  be  placed 
on  board  ;  nor  shall  the  vessel  be  used  as  a  transport  for  the  carrying 
of  despatches,  officers  or  men  not  sick  or  disabled,  other  than  those 
belonging  to  the  Medical  Department." ' 

Similar  instructions  were  also  issued  by  the  United  States  Navy 
Department 

1  General  Orders  No.  47,  A,  G.  O.  "^  General  Orders   No.   53,  A.  G.  O- 

1898.  1898. 


APPENDIX   C 

THE  DECLARATION   OF    PARIS 

Declaration  Respecting  Maritime  Law,  Signed  by  the  Plen- 
ipotentiaries OF  Great  Britain,  Austria,  France,  Prussia, 
Russia,  Sardinia,  and  Turkey,  Assembled  in  Congress  at 
Paris,  April  i6,  1856 

"  The  Plenipotentiaries  who  signed  the  Treaty  of  Paris  of  the  30th 
of  March,  1856,  assembled  in  conference, — Considering: 

"  That  maritime  law,  in  time  of  war,  has  long  been  the  subject  of 
deplorable  disputes; 

"  That  the  uncertainty  of  the  law,  and  of  the  duties  in  such  a  mat- 
ter, gives  rise  to  differences  of  opinion  between  neutrals  and  bellig- 
erents which  may  occasion  serious  difficulties,  and  even  conflicts ; 

"That  it  is  consequently  advantageous  to  establish  a  uniform  doc- 
trine on  so  important  a  point ; 

"That  the  Plenipotentiaries  assembled  in  Congress  at  Paris  cannot 
better  respond  to  the  intentions  by  which  their  governments  are  an- 
imated than  by  seeking  to  introduce  into  international  relations  fixed 
principles  in  this  respect : 

"The  above-mentioned  Plenipotentiaries,  being  duly  authorized, 
resolved  to  concert  among  themselves  as  to  the  means  of  attaining 
this  object ;  and,  having  come  to  an  agreement,  have  adopted  the 
following  solemn  declaration  : 

"i.  Privateering  is,  and  remains  abolished. 

"  2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of 
contraband  of  war. 

"  3.  Neutral  goods,  with  the  exception  of  contraband  of  war,  are 
not  liable  to  capture  under  the  enemy's  flag. 

"  4.  Blockades,  in  order  to  be  binding,  must  be  effective,  that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy. 

"  The  governments  of  the  undersigned  Plenipotentiaries  engage  to 


APPENDIX    C  537 

bring  the  present  Declaration  to  the  knowledge  of  the  states  which  have 
not  taken  part  in  the  Congress  of  Paris,  and  to  invite  them  to  accede  to  it, 

"  Convinced  that  the  maxims  which  they  now  proclaim  cannot  but 
be  received  with  gratitude  by  the  whole  world,  the  undersigned  Plen- 
ipotentiaries doubt  not  that  the  efforts  of  their  governments  to  obtain 
the  general  adoption  thereof  will  be  crowned  with  full  success. 

"The  present  Declaration  is  not  and  shall  not  be  binding,  except 
between  those  Powers  who  have  acceded,  or  shall  accede,  to  it. 

"  Done  at  Paris,  April  i6,  1856." 

This  Declaration  of  the  six  powers  of  the  Paris  conference  was 
communicated  to  other  states,  and  it  was  stated,  in  a  memorandum 
of  the  French  Minister  of  Foreign  Affairs  to  the  Emperor,  dated  June 
12,  1858,  that  the  following  powers  had  signified  their  full  allegiance 
to  the  four  principles — viz.,  Baden,  Bavaria,  Bremen,  Brazil,  the  Duchy 
of  Brunswick,  Chili,  the  Argentine  Republic,  the  Germanic  Con- 
federation, Denmark,  the  two  Sicilies,  Ecuador,  the  Roman  states, 
Greece,  Guatemala,  Hayti,  Hamburg,  Hanover,  the  two  Hesses,  LU- 
beck,  Mecklenburg-Strelitz,  Mecklenburg-Schwerin,  Nassau,  Olden- 
burg, Parma,  the  Netherlands,  Peru,  Portugal,  Saxony,  Saxe-Alten- 
burg,  Saxe-Coburg-Gotha,  Saxe-Meiningen,  Saxe-Weimar,  Sweden, 
Switzerland,  Tuscany,  and  Wiirtemberg.  The  executive  govern- 
ment of  Uruguay  also  gave  its  full  assent  to  all  the  four  principles, 
subject  to  the  ratification  of  the  legislature.  Spain  and  Mexico 
adopted  the  last  three  as  their  own,  but,  on  account  of  the  first 
article,  declined  acceding  to  the  entire  Declaration.  The  United 
States  adopted  the  second,  third,  and  fourth  propositions,  indepen- 
dently of  the  first,  offering,  however,  to  adopt  that  also,  with  the 
following  amendment,  or  additional  clause,  "  and  the  private  prop- 
erty of  subjects  or  citizens  of  a  belligerent  on  the  high  seas,  shall  be 
exempt  from  seizure  by  the  public  armed  vessels  of  the  other  bellig- 
erent except  it  be  contraband."  The  proposition  thus  extended 
has  been  accepted  by  Russia,  and  some  other  states  have  signified 
their  approbation  of  it.  There  is  reason  to  hope  that  all  the  mari- 
time nations  of  Europe  will  eventually  adopt  the  extension.'  The 
reasons  advanced  by  the  United  States  for  declining  to  accept  the 
entire  Declaration  have  been  fully  discussed  elsewhere.'' 

'  II  Plalleck,  p.  17.  the  English  Parliament,  see   For.  Rel. 

*  Ante,  p.  384.  For  a  discussion  of  of  the  United  States,  1875,  pp.  616- 
the   principles    of  the   Declaration   in      631. 


APPENDIX    D 

THE   DECLARATION   OF   ST.  PETERSBURG 

In  December,  1868,  a  conference  of  delegates,  representing  nine- 
teen states,  assembled  at  St.  Petersburg,  upon  the  invitation  of  the 
Russian  Government,  for  the  purpose  of  considering  the  existing  rules 
of  war.  This  body,  which  has  become  known  as  the  International 
Military  Commission,  completed  its  labors  on  November  4-16  of  the 
same  year.  As  a  result  of  its  deliberations,  the  following  Declara- 
tion was  agreed  to  and  signed  by  the  duly  authorized  represent- 
atives of  the  states  participating  in  the  conference : ' 

"  Considering  that  the  progress  of  civilization  should  have  the 
effect  of  alleviating  as  much  as  possible  the  calamities  of  war ; 

"  That  the  only  legitimate  object  which  states  should  endeavor 
to  accomplish  during  war  is  to  weaken  the  military  force  of  the 
enemy; 

"  That  for  this  purpose  it  is  sufficient  to  disable  the  greatest  pos- 
sible number  of  men ; 

"  That  this  object  would  be  exceeded  by  the  employment  of  arms 
which  uselessly  aggravate  the  sufferings  of  disabled  men,  or  render 
their  death  inevitable; 

"  That  the  employment  of  such  arms  would,  therefore,  be  contrary 
to  the  laws  of  humanity; 

"  The  contracting  parties  engage  mutually  to  renounce,  in  case 
of  war  among  themselves,  the  employment,  by  their  military  or  naval 
forces,  of  any  projectile  of  less  weight  than  four  hundred  grammes' 
which  is  explosive,  or  is  charged  with  fulminating  or  inflammable 
substances. 

'  Austria,    Bavaria,    Belgium,    Den-  tion,    Russia,    Sweden,    and    Norway, 

mark,    France,    Great   Britain,  Greece,  Switzerland,     Turkey,     and     Wiirtem- 

Italy,  the  Netherlands,  Persia,  Portugal,  berg. 
Prussia,  the  North  German  Confedera-  ^  Fourteen  ounces  avoirdupois. 


APPENDIX   D  539 

*'  They  agree  to  invite  all  the  states  which  have  not  taken  part  in 
the  deliberations  of  the  International  Military  Commission,  assem- 
bled at  St.  Petersburg,  by  sending  delegates  thereto,  to  accede  to 
the  present  engagement. 

"  This  engagement  is  obligatory  only  upon  the  contracting  or  ac- 
ceding parties  thereto,  in  case  of  war  between  two  or  more  of  them- 
selves; it  is  not  applicable  with  regard  to  non-contracting  powers, 
or  powers  that  shall  not  have  acceded  to  it. 

"  It  will  also  cease  to  be  obligatory  from  the  moment  when,  in  a 
war  between  contracting  or  acceding  parties,  a  non-contracting  party, 
or  a  non-acceding  party,  shall  join  one  of  the  belligerents. 

*'  The  contracting  or  acceding  parties  reserve  to  themselves  the 
right  to  come  to  an  understanding  hereafter  whenever  a  precise 
proposition  shall  be  drawn  up,  in  view  of  future  improvements  which 
may  be  effected  in  the  armament  of  troops,  in  order  to  maintain  the 
principles  which  they  have  established,  and  to  reconcile  the  neces- 
sities of  war  with  the  laws  of  humanity." 


APPENDIX    E 

THE     INTERNATIONAL     PEACE    CONFERENCE    AT    THE 

HAGUE 

{May  1 8  to  July  29,  1899) 

As  a  result  of  the  deliberations  of  the  International  Peace  Con- 
ference, convened  in  pursuance  of  an  invitation  addressed  by  the 
Imperial  Government  of  Russia  to  the  principal  states  of  the  civil- 
ized world,  three  treaties  or  conventions  were  entered  into  and  three 
formal  declarations  were  adopted  by  the  signatory  powers.  In  ad- 
dition to  this  action  in  the  way  of  obligatory  conventions,  several 
important  resolutions  were  agreed  to  and  submitted  to  the  signatory 
powers  for  subsequent  consideration.  The  following  are  the  princi- 
pal results  of  the  conference  : 

I.  A  Convention  for  the  pacific  adjustment  of  international  dis- 
putes.' 

II.  A  Convention  in  respect  to  the  laws  and  usages  of  war  on 
land.' 

III.  A  Convention  for  the  adaptation  of  the  rules  of  maritime  war- 
fare to  the  principles  of  the  Geneva  Convention  of  August  22,  1864.^ 

IV.  Three  declarations  in  respect  to  the  following  subjects;* 

{a.)  The  prohibition  of  the  use  of  projectiles  or  explosives  from 
balloons,  or  by  other  similar  methods. 

[b.)  The  prohibition  of  the  employment  of  projectiles  which  have 
for  their  sole  purpose  to  diffuse  asphyxiating  or  other  deleterious 
gases. 

(c.)  The  prohibition  of  bullets  which  expand  or  flatten  easily  in 
the  human  body ;  such  as  bullets  with  hard  jackets,  which  do  not 
entirely  cover  the  projectile,  or  are  provided  with  incisions, 

'  For  the  text  of  this  Convention,  see  ^  For  the  text  of  this  Convention,  see 

pp.  541-551, /(7j/.  pp.  561-564, /^j/. 

'■^  For  the  text  of  this  Convention,  see  ■•  For  the  text  of  these  Declarations, 

pp.  551-561,  ^ost.  see  pp.  564-565, /fj-/. 


•^ ^  APPENDIX   E  541 

V.  Six  resolutions  of  international  importance  were  also  agreed 
to  by  the  Conference.' 


AGREEMENT    FOR   THE   PEACEABLE   ADJUSTMENT  OF  INTER- 
NATIONAL  DISPUTES' 

TITLE    I. — MAINTENANCE   OF   THE   GENERAL    PEACE 

Art.  I.  With  a  view  to  prevent,  as  far  as  possible,  the  resort  to 
force  in  the  relations  of  states,  the  signatory  powers  agree  to  use 
their  utmost  endeavors  to  secure  the  peaceful  settlement  of  interna- 
tional differences. 

TITLE    II. — GOOD    OFFICES   AND    MEDIATION 

Art.  II.  In  cases  of  serious  disagreement  or  conflict,  before  ap- 
pealing to  arms  the  signatory  powers  agree  to  resort,  as  far  as  cir- 
cumstances will  permit,  to  the  good  offices  or  mediation  of  one 
or  more  friendly  powers. 

Art.  III.  Independently  of  this  recourse,  the  signatory  parties 
deem  it  expedient  that  one  or  more  powers,  strangers  to  the  dispute, 
should,  of  their  own  initiative,  in  so  far  as  circumstances  favor  it, 
tender  their  good  offices  or  mediation  to  the  litigant  states.  The 
right  of  tendering  good  offices,  or  mediation,  belongs  to  the  powers 
who  are  strangers  to  the  dispute,  even  during  the  progress  of  hostili- 
ties. The  exercise  of  this  right  can  never  be  considered,  by  either 
of  the  litigant  parties,  as  an  unfriendly  act. 

Art.  IV.  The  role  of  mediator  consists  in  the  reconciliation  of 
opposing  claims  and  the  removal  of  ill  feeling  to  which  the  dispute 
between  the  states  may  have  given  rise. 

'  For  the  text    of  these   Resolutions,  Japan,  and  the  Spanish- American  states 

see  p.  566,  post.  of  South  and  Central  America.    No  rea- 

"^  The  Arbitration  Convention  was  son  is  assigned  for  their  failure  to  sign, 
signed  by  thirty  -  six  plenipotentiaries  nor  does  it  anywhere  appear  that  any  of 
representing  sixteen  states  of  the  civil-  them  cherish  the  intention  of  adhering 
ized  world  ;  the  signatory  parties  being  to  the  Convention  at  any  time  in  the 
France,  Spain,  Portugal,  Russia,  Bel-  future.  The  delegates  representing  the 
gium,  Holland,  Denmark,  Sweden  and  United  States  signed  the  Convention 
Norway,  Greece,  Bulgaria,  Roumania,  with  a  reservation  which  appears  else- 
Montenegro,  Persia,  Siam,  the  United  where  (p.  262,  ante),  but  which  in  no 
States,  and  Mexico.  The  principal  non-  way  militates  against  the  complete  ac- 
signatory  states  were  Great  Britain,  Ger-  ceptance  of  the  Convention  by  the  gov- 
many,   Austria,   Italy,   Turkey,   China,  ernment  which  they  represented. 


542  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

Art.  V.  The  functions  of  a  mediator  cease  the  instant  it  is  de- 
clared by  one  of  the  litigant  powers,  or  by  the  mediator  himself,  that 
the  measures  of  conciliation  proposed  by  him  are  not  accepted. 

Art.  VI.  Good  offices  and  mediation,  either  upon  the  request  of 
the  litigant  states  or  upon  the  initiative  of  powers  foreign  to  the  dis- 
pute, have  exclusively  the  character  of  advice ;  they  never  have  obli- 
gatory force. 

Art.  VII.  The  acceptance  of  mediation  can  never  have  the  effect, 
save  in  the  event  of  an  agreement  to  the  contrary,  to  interrupt,  delay, 
or  impede  mobilization,  or  other  measures  preparatory  to  war.  If 
mediation  occurs  after  the  opening  of  hostilities,  save  in  the  case  of 
a  contrary  agreement,  it  does  not  interrupt  the  existing  military  opera- 
tions. 

Art.  VIII.  The  signatory  powers  agree  in  recommending  the  appli- 
cation, in  circumstances  which  permit  it,  of  special  mediation  under 
the  following  form : 

In  case  of  a  dispute  seriously  compromising  peace,  the  states  in 
conflict  choose,  respectively,  one  power  to  whom  they  intrust  the 
task  of  entering  into  direct  communication  with  the  power  chosen 
by  the  other  party,  with  a  view  to  prevent  the  rupture  of  peaceful 
relations. 

During  the  existence  of  this  commission,  the  duration  of  which,  save 
in  the  case  of  stipulations  to  the  contrary,  shall  not  exceed  thirty 
days,  the  litigant  states  are  to  refrain  from  all  direct  communication 
with  each  other,  in  respect  to  the  cause  of  difference,  which  is  to  be 
regarded  as  referred  to  the  exclusive  consideration  of  the  mediating 
powers.  The  latter  are  to  put  forth  every  endeavor  to  adjust  the 
difference.  In  case  of  definite  rupture  of  friendly  relations,  these 
powers  continue  to  be  jointly  charged  with  the  duty  of  profiting  by 
every  opportunity  to  re-establish  peace. 

TITLE    III. — INTERNATIONAL   COMMISSIONS   OF    INQUIRY 

Art.  IX.  In  international  differences  affecting  neither  honor  nor 
essential  interests,  and  growing  out  of  a  difference  of  opinion  as 
to  questions  of  fact,  the  signatory  powers  deem  it  expedient  that  the 
parties  who  may  not  be  able  to  come  to  an  agreement  in  the  diplo- 
matic way,  should,  as  far  as  circumstances  will  permit,  institute  an 
International  Commission  of  Inquiry  charged  with  facilitating  the 


APPENDIX   E  543 

solution  of  such  differences  by  clearing  up  such  questions  of  fact  by 
an  impartial  and  conscientious  investigation. 

Art.  X.  International  Commissions  of  Inquiry  are  constituted  by 
special  agreement  between  the  litigant  parties.  The  convention  of 
inquiry  sets  forth  the  facts  to  be  investigated  and  the  extent  of  the 
commissioners'  powers.  It  regulates  procedure.  The  Commission 
has  authority  to  hear  both  sides  of  the  controversy.  The  order  of, 
and  the  delays  to  be  allowed  in,  presentation  of  the  case  on  either 
side,  in  so  far  as  they  are  not  provided  for  in  the  convention  of  in- 
quiry, are  determined  by  the  commission  itself. 

Art.  XL  International  Commissions  of  Inquiry  are  formed,  save 
in  the  case  of  contrary  stipulations,  in  the  manner  determined  by 
Article  XXXII.  of  this  Convention. 

Art.  XII.  The  litigant  parties  pledge  themselves  to  furnish  the 
International  Commission  of  Inquiry,  in  the  fullest  measure  that 
they  shall  regard  as  possible,  every  means  and  facility  necessary  to 
the  complete  and  exact  understanding  of  the  facts  in  question. 

Art.  XIII.  The  International  Commission  of  Inquiry  renders  a 
report  to  the  litigant  powers  signed  by  all  of  the  members  of  the 
Commission. 

Art.  XIV.  The  report  of  the  International  Commission  of  Inquiry, 
which  is  limited  to  a  verification  of  facts,  has  in  no  respect  the  char- 
acter of  an  arbitral  judgment.  It  leaves  to  the  litigant  powers  full 
liberty  as  to  the  result  that  may  be  imparted  to  such  verification. 

TITLE    IV. — INTERNATIONAL    ARBITRATION 

Chapter  I. — Arbitral  Justice 

Art.  XV.  International  arbitration  has  for  its  purpose  the  settle- 
ment of  disputes  between  states  by  judges  of  their  own  choice  and 
upon  a  basis  of  respect  for  law. 

Art.  XVI.  In  questions  of  a  judicial  character,  and  especially  in 
questions  of  the  interpretation  and  application  of  international  agree- 
ments, arbitration  is  recognized  by  the  signatory  powers  as  the  most 
effective,  and  at  the  same  time  the  most  equitable,  method  of  adjust- 
ing disputes  which  have  not  been  settled  in  the  diplomatic  way. 

Art.  XVII,  The  arbitral  convention  is  agreed  to  for  disputes  al- 
ready existing,  or  for  future  controversies.  It  can  apply  to  all  dis- 
putes or  to  disputes  of  a  limited  class. 


544  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

Art.  XVIIL  The  arbitral  convention  implies  the  engagement  to 
submit  in  good  faith  to  the  arbitral  decision. 

Art.  XIX.  Independently  of  general  or  special  treaties  which 
expressly  stipulate  for  a  reference  to  arbitration  on  the  part  of  the 
signatory  powers,  these  powers  reserve  to  themselves  the  right,  either 
before  the  ratification  of  the  present  agreement,  or  subsequently 
thereto,  to  conclude  new  agreements,  general  or  special  in  charac- 
ter, with  a  view  to  extend  compulsory  arbitration  to  all  cases  which 
they  shall  judge  possible  to  submit  to  it. 


Chapter  II. — Permanent  Court  of  Arbitration 

Art.  XX.  To  the  end  that  immediate  recourse  to  arbitration  may 
be  facilitated,  in  respect  to  international  differences  which  cannot 
be  adjusted  in  the  diplomatic  way,  the  signatory  powers  agree  to 
organize  a  Permanent  Court  of  Arbitration,  accessible  at  all  times, 
and  performing  its  functions,  save  in  the  case  of  contrary  stipula- 
tions, in  accordance  with  the  rules  of  procedure  set  forth  in  the 
present  Convention. 

Art.  XXI.  The  Permanent  Court  shall  have  cognizance  of  all 
cases  of  arbitration,  unless  there  may  be  an  agreement  between  the 
parties  for  the  establishment  of  a  special  tribunal. 

Art.  XXII.  An  International  Bureau,  established  at  The  Hague, 
serves  as  a  Registry  for  the  Court;  this  Bureau  is  the  intermediary  of 
communications  relative  to  its  meetings.  It  preserves  the  records 
and  is  charged  with  the  disposition  of  all  administrative  matters. 
The  signatory  powers  agree  to  communicate  to  the  Bureau  at  The 
Hague  a  certified  copy  of  every  stipulation  in  respect  to  arbitration 
occurring  between  them,  and  of  every  arbitral  decision  affecting  them 
which  may  be  reached  by  special  tribunals.  They  agree  to  com- 
municate to  the  Bureau,  in  like  manner,  the  laws,  regulations,  and 
documents  which  evidence  the  fact  that  the  judgments  reached  by 
the  Court  have  been  carried  into  final  effect. 

Art.  XXIII.  Each  signatory  power  shall  designate,  within  the 
three  months  following  the  ratification  of  this  agreement,  four  per- 
sons at  the  most,  of  recognized  capacit}'  in  questions  of  international 
law,  who  enjoy  the  highest  moral  character  and  are  willing  to  ac- 
cept the  functions  of  arbitrators.  The  names  of  the  persons  so 
designated  shall  be  entered  as  members  of  the  Court,  upon  a  list 


APPENDIX   E  545 

which  shall  be  communicated  by  the  Bureau  to  all  of  the  signatory- 
powers.  Every  modification  in  the  list  of  arbitrators  is  brought  by 
the  agency  of  the  Bureau  to  the  attention  of  the  signatory  powers. 
Two  or  more  of  the  powers  may  agree  to  the  designation  in  common 
of  one  or  more  members.  The  same  person  may  be  designated  by 
different  powers.  The  members  of  the  Court  are  appointed  for  a 
term  of  six  years.  Their  appointments  may  be  renewed.  In  the 
event  of  the  death  or  retirement  of  a  member  of  the  Court,  succes- 
sion is  regulated  in  accordance  with  the  method  fixed  for  his  ap- 
pointment. 

Art.  XXIV.  When  the  signatory  powers  desire  to  apply  to  the 
Permanent  Court  for  the  adjustment  of  a  dispute  arising  between 
them,  the  choice  of  arbitrators  called  to  form  the  tribunal  having 
jurisdiction  to  decide  the  dispute  must  be  made  from  the  general 
list  of  members  of  the  Court. 

In  case  of  a  failure  to  constitute  an  arbitral  tribunal  by  the  im- 
mediate agreement  of  the  parties,  the  following  procedure  will  be 
resorted  to.  Each  party  names  two  arbitrators,  and  the  latter 
choose  an  umpire.  In  case  of  an  equality  of  votes,  the  choice  of 
an  umpire  is  left  to  a  third  power  designated  by  agreement  between 
the  parties.  If  no  agreement  is  reached  upon  this  subject,  each 
party  designates  a  different  power,  and  the  selection  of  an  umpire 
is  made  by  agreement  of  the  powers  thus  designated.  The  tribunal 
being  thus  composed,  the  parties  notify  the  Bureau  of  their  determi- 
nation to  appeal  to  the  Court,  and  communicate  the  names  of  the 
arbitrators.  The  arbitral  tribunal  shall  meet  at  the  date  fixed  by 
the  parties.  The  members  of  the  Court,  in  the  exercise  of  their 
functions,  and  while  outside  the  territories  of  their  own  states,  shall 
enjoy  diplomatic  privileges  and  immunities. 

Art.  XXV.  The  arbitral  tribunal  shall  sit  ordinarily  at  The  Hague. 
The  place  of  sitting,  save  in  a  case  of  necessity,  can  only  be  changed 
by  the  tribunal  with  the  consent  of  the  parties. 

Art.  XXVI.  The  International  Bureau  at  The  Hague  is  author- 
ized to  place  its  organization  and  premises  at  the  disposal  of  the 
signatory  powers  for  the  use  of  any  special  tribunal  of  arbitration. 
The  jurisdiction  of  the  Permanent  Court  may  be  extended,  under 
the  conditions  prescribed  in  these  regulations,  to  disputes  existing 
between  non-signatory  powers  or  between  signatory  and  non-signa- 
tory powers,  if  the  parties  agree  to  have  recourse  to  this  jurisdiction. 
35 


546  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

Art  XXVII.  The  signatory  powers  regard  it  as  a  duty,  in  the 
event  of  an  acute  difference  threatening  to  break  forth  between  two 
or  more  of  them,  to  draw  their  attention  to  the  fact  that  the  Perma- 
nent Court  is  open.  Accordingly,  they  declare  that  the  fact  of  in- 
viting the  attention  of  the  parties  in  dispute  to  the  provisions  of  the 
present  Convention,  and  the  advice  given,  in  the  superior  interest 
of  peace,  to  address  the  Permanent  Court,  can  be  considered  only 
as  an  act  of  friendship.' 

Art.  XXVIII.  A  Permanent  Administrative  Council,  composed 
of  the  diplomatic  representatives  of  the  signatory  powers  at  The 
Hague  and  the  Minister  of  Foreign  Affairs  of  the  Netherlands,  who 
shall  exercise  the  functions  of  President,  shall  be  established  in  this 
city  as  soon  as  possible  after  the  ratification  of  this  instrument  by 
at  least  nine  powers. 

This  Council  shall  be  charged  with  the  establishment  and  organi- 
zation of  the  International  Bureau,  which  shall  remain  under  its 
direction  and  supervision.  It  shall  notify  the  powers  of  the  consti- 
tution of  the  Court,  and  shall  provide  for  its  installation.  It  shall 
draw  up  its  rules  of  order,  as  well  as  all  other  necessary  regulations. 
It  shall  decide  all  administrative  questions  that  may  arise  concern- 
ing the  operations  of  the  Court.  It  shall  have  full  power  in  respect 
to  the  appointment,  suspension,  or  dismissal  of  officers  or  employees 
of  the  Bureau.  It  shall  fix  their  salaries  and  emoluments,  and  shall 
control  the  general  expenses.  The  presence  of  five  members  shall 
constitute  a  quorum  for  the  transaction  of  business.  Decisions  are 
reached  by  a  majority  of  votes.  The  Council  communicates  to  the 
powers  without  delay  the  rules  adopted  by  it.  It  addresses  to  them 
each  year  a  report  of  the  work  of  the  Court,  of  the  operation  of  its 
administrative  service,  and  its  expenses. 

Art.  XXIX.  The  expenses  of  the  Bureau  shall  be  defrayed  by  the 

'  The  Arbitration  Convention  was  strued  as  to  require  the  United  States 
signed  by  the  representatives  of  the  of  America  to  depart  from  its  tradition- 
United  States  with  the  following  qual-  al  policy  of  not  intruding  upon,  inter- 
ification,  having  especial  reference  to  fering  with,  or  entangling  itself  in  the 
Article  XXVII.:  ''The  delegation  of  political  questions  or  internal  adminis- 
the  United  States  of  America,  in  sign-  tration  of  any  foreign  state ;  nor  shall 
ing  the  Convention  regulating  the  anything  contained  in  the  said  Conven- 
peaceable  settlement  of  international  tion  be  construed  to  imply  a  relinquish- 
conflicts,  as  proposed  by  the  Interna-  ment  by  the  United  States  of  America 
tional  Peace  Conference,  make  the  fol-  of  its  traditional  attitude  towards  pure- 
lowing  declarations:  Nothing  contain-  ly  American  questions." 
ed  in  this  Convention  shall  be  so  con- 


APPENDIX    E  547 

signatory  powers  in  the  proportion  established  for  the  International 
Bureau  of  the  Universal  Postal  Union. 


Chapter  III. — Arbitral  Procedure 

Art.  XXX.  With  a  view  to  favor  the  development  of  arbitration, 
the  signatory  powers  have  agreed  upon  the  following  rules  which 
shall  apply  to  arbitral  procedure,  in  so  far  as  the  parties  have  not 
agreed  upon  other  rules. 

Art.  XXXI.  The  powers  who  have  recourse  to  arbitration  sign  a 
special  undertaking  (arbitral  agreement),  in  which  the  object  of  the 
litigation,  as  well  as  the  extent  of  the  powers  of  the  arbitrators,  are 
clearly  defined.  This  undertaking  implies  an  engagement  of  the 
parties  to  submit  in  good  faith  to  the  arbitral  decision. 

Art.  XXXII.  The  arbitral  functions  may  be  conferred  upon  one 
arbitrator,  or  upon  several  arbitrators,  designated  by  the  parties  at 
their  discretion,  or  chosen  by  them  from  among  the  members  of 
the  Permanent  Court  of  Arbitration  established  by  this  instrument. 
In  default  of  the  constitution  of  the  tribunal  by  an  immediate  agree- 
ment of  the  parties,  the  procedure  shall  be  as  follows:  Each  party 
names  two  arbitrators,  and  the  latter,  acting  together,  choose  an  um- 
pire. In  case  of  an  equality  of  votes,  the  selection  of  an  umpire  is 
intrusted  to  a  third  power,  designated  by  agreement  of  the  parties. 
If  no  agreement  is  reached  on  this  point,  each  party  designates  a 
different  power,  and  the  selection  of  an  umpire  is  made  by  agree- 
ment of  the  powers  thus  designated. 

Art.  XXXIII.  Where  the  sovereign  or  chief  of  the  state  is  chosen 
as  arbitrator,  the  arbitral  procedure  is  regulated  by  him. 

Art.  XXXIV.  The  umpire  is  ex  officio  President  of  the  tribunal ; 
where  the  tribunal  does  not  include  an  umpire  the  tribunal  itself 
names  its  President. 

Art.  XXXV.  In  case  of  the  death  or  resignation  of  an  arbitrator, 
or  his  inability  to  act  for  any  cause  whatever,  the  vacancy  is  filled 
in  accordance  with  the  method  prescribed  tor  his  appointment. 

Art.  XXXVI.  The  seat  of  the  tribunal  is  designated  by  the  par- 
ties. In  default  of  any  such  designation,  the  tribunal  sits  at  The 
Hague.  The  sitting  so  fixed,  save  in  case  of  necessity,  can  be 
changed  by  the  tribunal  only  with  the  consent  of  the  parties. 

Art.  XXXVII.  The  parties  have  the  right  to  appoint  delegates  or 


548  THE   ELEMENTS    OF   INTERNATIONAL   LAW 

special  agents  before  the  tribunal,  charged  with  the  duty  of  acting 
as  intermediaries  between  themselves  and  the  tribunal.  In  addition 
they  are  authorized  to  have  counsellors  or  advocates,  named  by 
themselves,  and  charged  with  the  defence  of  their  rights  and  inter- 
ests before  the  tribunal. 

Art.  XXXVIII.  The  tribunal  decides  upon  the  choice  of  languages 
to  be  used  in  its  proceedings,  and  which  shall  be  authorized  to  be 
employed  in  its  presence. 

Art.  XXXIX.  Arbitral  procedure  comprehends,  as  a  general  rule, 
two  distinct  phases  :  preliminary  examination  and  discussion.  Pre- 
liminary examination  consists  in  the  communication  made  by  the 
respective  agents  to  the  members  of  the  tribunal  and  the  adverse 
party  of  all  written  and  printed  documents  containing  the  matters 
relied  upon  by  them  in  support  of  their  cases.  This  presentation 
shall  be  made  in  such  order  and  sequence,  and  subject  to  such 
delays,  as  may  be  determined  upon  by  the  tribunal  in  virtue  of  Ar- 
ticle XLIX.  Discussion  consists  in  the  oral  development  of  the 
matters  submitted  to  the  tribunal  by  the  parties. 

Art.  XL.  Every  document  presented  by  either  party  shall  be  com- 
municated to  the  other. 

Art.  XLI.  The  discussions  are  directed  by  the  President.  They 
are  made  in  public  only,  in  pursuance  of  a  decision  of  the  tribunal 
made  with  the  consent  of  the  parties.  They  are  entered  on  the  record 
of  proceedings  by  the  secretaries  named  by  the  President.  These 
records  alone  have  the  official  character. 

Art.  XLI  I.  The  examination  being  closed,  the  tribunal  has  the 
right  to  exclude  from  the  case  all  new  documents  or  instruments 
which  one  of  the  parties  may  wish  to  submit  without  the  consent  of 
the  other. 

Art.  XLIII.  The  tribunal  remains  free  to  take  into  consideration 
new  documents  and  instruments  to  which  the  agents  or  counsel  of 
the  parties  desire  to  call  to  its  attention.  In  this  case  the  tribunal 
may  require  the  production  of  such  documents  or  instruments,  sub- 
ject to  the  obligation  of  making  them  known  to  the  opposite  party. 

Art.  XLIV.  Moreover,  the  tribunal  may  require  of  the  agents  of 
the  parties  the  production  of  all  documents,  and  may  ask  all  neces- 
sary explanations.  In  case  of  refusal  the  tribunal  makes  a  note  of 
the  fact. 

Art.  XLV,  Agents  and  counsel  of  the  parties  are  authorized  to 


APPENDIX   E  549 

present  to  the  tribunal,  orally,  all  matters  which  they  may  deem 
relevant  to  the  defence  of  their  case. 

Art.  XLVI.  They  have  the  right  to  note  exceptions  and  incidents. 
The  decisions  of  the  tribunal  on  these  points  are  final,  and  can  give 
rise  to  no  subsequent  discussion. 

Art.  XLVII.  The  members  of  the  tribunal  have  the  right  to  put 
questions  to  the  agents  and  counsel  of  the  parties  and  to  call  for 
explanations  of  doubtful  points.  Neither  the  questions  put  nor  the 
observations  made  by  the  members  of  the  tribunal  in  the  course  of 
the  pleadings  can  be  regarded  as  expressions  of  the  opinion  of  the 
tribunal,  in  general  or  of  its  individual  members. 

Art.  XLVIII.  The  tribunal  is  authorized  to  determine  its  com- 
petence in  the  interpretation  of  the  arbitral  agreement,  as  well  as  in 
the  interpretation  of  other  treaties  which  may  be  appealed  to  in  the 
case  in  point,  and  in  the  application  of  the  rules  of  international  law. 

Art.  XLIX.  The  tribunal  has  the  right  to  make  rules  of  proced- 
ure for  the  conduct  of  the  litigation,  to  determine  the  form  of  pres- 
entation, and  the  delays  in  accordance  with  which  each  party  shall 
submit  his  case,  and  to  proceed  with  all  due  formality  in  respect  to 
the  production  of  evidence. 

Art.  L.  The  agents  and  counsel  of  the  parties,  having  presented 
all  proofs  and  explanations  in  support  of  their  respective  cases,  the 
President  declares  the  case  closed. 

Art.  LI.  The  deliberations  of  the  tribunal  take  place  with  closed 
doors.  Every  decision  is  reached  by  a  majority  of  members  of  the 
tribunal.  The  refusal  of  a  member  to  vote  shall  be  noted  in  the 
record. 

Art.  LII.  Reasons  are  to  be  assigned  for  the  arbitral  judgment, 
which  shall  be  decided  by  a  majority  of  members ;  it  is  reduced  to 
writing  and  is  signed  by  every  member  of  the  tribunal.  Members 
of  the  minority  may  declare  their  dissent  in  attaching  their  signa- 
tures to  the  judgment. 

Art.  LIII.  The  arbitral  judgment  shall  be  read  in  a  public  ses- 
sion of  the  tribunal,  at  which  the  agents  and  counsel  of  the  parties 
shall  be  present,  or  of  which  they  shall  be  duly  notified. 

Art.  LIV.  The  arbitral  judgment,  duly  pronounced  and  notified 
to  the  agents  of  the  litigant  parties,  decides  the  dispute  finally  and 
without  appeal. 

Art.  LV.  Parties  may  reserve,  in  the  arbitral  agreement,  the  right 


550  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

to  demand  a  review  of  the  arbitral  judgment.  In  this  case,  and  in 
the  event  of  there  being  no  stipulation  to  the  contrary,  the  request 
will  be  addressed  to  the  tribunal  which  has  rendered  the  decision. 
It  can  be  asked  for  only  upon  the  discovery  of  new  facts  of  such  a 
nature  that  they  would  have  exercised  a  decisive  influence  upon  the 
judgment,  and  which,  until  the  close  of  the  hearing,  were  unknown 
either  to  the  tribunal  or  to  the  party  who  demands  a  revision. 

Procedure  in  review  can  be  instituted  only  in  consequence  of  a 
decision  of  the  tribunal  especially  setting  forth  the  existence  of  the 
new  facts,  and  recognizing  in  them  the  character  contemplated  in 
the  preceding  paragraph  and  declaring  that  the  request  is  received 
upon  that  ground.  The  arbitral  agreement  determines  the  limits  of 
time  within  which  the  demand  for  revision  shall  be  made. 

Art.  LVI.  The  arbitral  judgment  is  obligatory  only  upon  the 
parties  to  the  arbitral  agreement.  When  the  interpretation  of  a 
treaty  is  in  question  to  which  other  powers  than  those  in  litigation 
are  parties,  the  latter  shall  notify  the  former  of  the  agreement  into 
which  they  have  entered.  Each  of  such  powers  has  the  right  to  be 
heard  at  the  trial.  If  one  or  more  of  them  has  taken  advantage  of 
the  right,  the  interpretation  embodied  in  the  arbitral  judgment  is 
equally  binding  upon  them. 

Art.  LVI  I.  Each  party  pays  its  own  expenses  and  an  equal  share 
of  the  expenses  of  the  tribunal. 

GENERAL    PROVISIONS 

Art.  LVIII.  This  Convention  shall  be  ratified  with  the  briefest 
possible  delay.  The  ratifications  shall  be  deposited  at  The  Hague. 
On  the  deposit  of  each  ratification  a  minute  shall  be  drawn  up,  of 
which  one  copy,  properly  certified,  shall  be  transmitted,  through  dip- 
lomatic channels,  to  each  of  the  other  powers  represented  at  the 
International  Peace  Conference  at  The  Hague. 

Art.  LIX.  Non-signatory  powers  who  were  represented  at  the  In- 
ternational Peace  Conference  may  become  parties  to  this  Conven- 
tion. To  that  end  they  shall  make  known  their  adhesion  to  the 
contracting  powers  by  means  of  a  notification  in  writing  addressed 
to  the  Government  of  the  Netherlands,  by  whom  it  shall  be  commu- 
nicated to  each  of  the  other  contracting  powers. 

Art.  LX,  The  conditions  in  accordance  with  which  powers  not 


APPENDIX   E  551 

represented  at  the  International  Peace  Conference  at  The  Hague 
may  become  parties  shall  form  the  subject  of  a  subsequent  conven- 
tion between  the  contracting  powers. 

Art.  LXI.  If  it  should  happen  that  one  of  the  high  contracting 
powers  should  disavow  this  Convention,  such  disavowal  shall  become 
operative  only  one  year  after  the  notification  thereof  shall  have  been 
made  in  writing  to  the  government  of  the  Netherlands,  and  imme- 
diately communicated  by  it  to  each  of  the  other  contracting  powers. 
The  disavowal  shall  only  affect  the  notifying  power. 

Done  at  The  Hague  this  29th  day  of  July,  1899,  in  an  original 
■which  shall  remain  on  deposit  in  the  archives  of  the  government 
of  the  Netherlands,  and  of  which  certified  copies  shall  be  transmitted, 
through  diplomatic  channels,  to  each  of  the  contracting  powers. 


RULES   CONCERNING    THE    LAWS    AND    USAGES    OF    WAR   ON 

LAND 

SECTION    I. — BELLIGERENTS 

Chapter  I.— The  Belligerent  Character 

Art.  I.  The  laws,  rights,  and  obligations  of  war  apply,  not  only  to 
the  army,  but  also  to  militia  forces  and  to  bodies  of  volunteers,  which 
combine  the  following  conditions: 

(i)  Having  at  their  head  a  person  responsible  for  his  subordinates ; 

(2)  Having  a  fixed,  distinctive  badge,  recognizable  at  a  distance  ; 

(3)  Carrying  arms  openly  ;  and 

(4)  Conforming  in  their  operations  to  the  laws  and  usages  of  war. 
In  countries  in  which  the  militia  or  volunteers  compose  the  army, 

or  form  a  part  of  it,  they  are  included  under  the  designation  of  "  army." 
Art.  II.  The  population  of  a  non- occupied  territory  who,  at  the 
approach  of  the  enemy,  take  up  arms  spontaneously,  in  order  to  re- 
sist the  troops  of  invasion,  without  having  had  time  to  organize  in 
conformity  to  Article  I.,  shall  be  considered  as  belligerents  if  they  ob- 
serve the  laws  and  usages  of  war. 

Art.  III.  The  military  forces  of  the  belligerent  parties  may  be 
composed  of  combatants  and  non-combatants.  In  case  of  capture 
by  the  enemy  both  shall  be  entitled  to  be  treated  as  prisoners  of  war. 


552      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

Chapter  II. — Prisoners  of  War 

Art.  IV.  Prisoners  of  war  are  prisoners  of  the  enemy's  govern- 
ment, and  not  of  the  individuals  or  corps  who  have  captured  them. 
They  are  to  be  treated  with  humanity.  Everything  which  belongs 
to  them  personally,  except  arms,  horses,  and  military  papers,  remains 
their  property. 

Art.  V.  Prisoners  of  war  may  be  interned  in  any  town,  fortress, 
camp,  or  place  whatsoever,  under  the  obligation  not  to  pass  beyond 
certain  fixed  limits  ;  but  they  may  be  confined  only  as  an  indispen- 
sable measure  of  security. 

Art.  VI.  The  state  may  employ  prisoners  of  war  as  laborers,  ac- 
cording to  their  rank  and  aptitude.  These  labors  shall  not  be  exces- 
sive, and  shall  have  no  connection  with  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  be  employed  in  the  public  admin- 
istration, or  by  private  individuals,  or  on  their  own  account. 

Work  done  for  the  state  shall  be  paid  for  in  accordance  with  the 
rates  of  pay  allowed  to  military  persons  of  the  national  army  when 
engaged  upon  the  same  work.  When  work  is  done  for  other  depart- 
ments of  the  government,  or  for  private  individuals,  the  conditions 
of  labor  shall  be  regulated  by  agreement  with  the  military  author- 
ities. 

The  pay  of  prisoners  shall  be  employed  to  ameliorate  their  con- 
dition, and  the  surplus,  after  the  expenses  of  their  maintenance  have 
been  deducted,  shall  be  paid  over  to  them  at  the  instant  of  their 
liberation. 

Art.  VII.  The  government  in  whose  power  prisoners  of  war  happen 
to  be  is  charged  with  their  support.  In  the  absence  of  a  special  un- 
derstanding between  the  belligerents,  prisoners  of  war  shall  be  treated, 
in  respect  to  food,  lodging,  and  clothing,  in  the  same  way  as  the  troops 
of  the  government  which  has  captured  them. 

Art.  VIII.  Prisoners  of  war  shall  be  subject  to  the  laws,  regula- 
tions, and  orders  in  force  in  the  army  of  the  state  in  whose  power 
they  happen  to  be.  Every  act  of  insubordination  authorizes,  so  fai 
as  they  are  concerned,  a  resort  to  the  necessary  measures  of  severity. 
Escaped  prisoners,  who  are  retaken  before  they  shall  have  succeeded 
in  rejoining  their  own  army,  or  before  quitting  the  territory  occupied 
by  the  army  which  shall  have  captured  them,  are  liable  to  discipli- 
nary punishment.     Prisoners  who,  after  having  succeeded  in  escap- 


APPENDIX  E  553 

ing,  are  again  made  prisoners,  are  not  liable  to  any  punishment  for 
the  previous  escape. 

Art.  IX.  Every  prisoner  of  war,  if  interrogated  on  the  subject,  is 
required  to  declare  his  true  name  and  rank,  and,  in  case  of  infringe- 
ment of  this  rule,  he  may  be  exposed  to  a  restriction  of  the  benefits 
accorded  to  prisoners  of  war  of  his  class. 

Art.  X.  Prisoners  of  war  are  to  be  liberated  on  parole,  if  the  laws 
of  their  country  authorize  it,  and,  in  such  case,  they  are  obliged, 
under  the  guarantee  of  their  personal  honor,  to  perform  scrupulous- 
ly, as  well  in  relation  to  their  own  government  as  in  regard  to  that 
which  has  made  them  prisoners,  the  engagements  which  they  may 
have  entered  into.  In  the  same  case,  their  own  government  is  to 
refrain  from  demanding  or  accepting  any  service  from  them  contrary 
to  the  tenor  of  the  paroles  which  they  have  given. 

Art.  XI.  A  prisoner  of  war  cannot  be  compelled  to  accept  his 
liberty  on  parole ;  nor  is  the  enemy's  government  obliged  to  accede 
to  the  demand  of  a  prisoner  of  war  who  claims  his  release  on  parole. 

Art.  XII.  Every  prisoner  of  war  released  on  parole  who  subse- 
quently takes  up  arms  against,  and  is  recaptured  by,  the  govern- 
ment to  which  he  has  engaged  his  honor,  or  against  its  allies,  forfeits 
the  right  to  be  treated  as  a  prisoner  of  war  and  may  be  brought  be 
fore  its  tribunals. 

Art.  XIII.  Individuals  who  accompany  an  army  without  forming 
an  integral  part  of  it,  such  as  correspondents  and  reporters  of  news- 
papers, sutlers  and  contractors,  who  fall  into  the  hands  of  the  enemy, 
and  whom  the  latter  deems  it  expedient  to  detain,  are  entitled  to  be 
treated  as  prisoners  of  war,  on  condition  that  they  are  provided  with 
certificates  of  identity  by  the  military  authority  of  the  army  which 
they  accompany. 

Art.  XIV.  There  shall  be  established  at  the  outbreak  of  hostili- 
ties, in  each  of  the  belligerent  states,  and,  if  there  be  occasion,  in 
neutral  states  which  shall  have  received  belligerents  within  their 
territories,  a  Bureau  of  Information  in  respect  to  prisoners  of  war. 
This  bureau,  which  is  charged  with  replying  to  all  applications  con- 
cerning prisoners,  shall  receive  from  the  several  branches  of  the 
service  having  jurisdiction  of  the  same  all  the  data  necessary  to 
establish  the  individual  record  of  each  prisoner  of  war.  It  is  to  be 
kept  informed  as  to  internments  and  changes,  as  well  as  to  deaths 
and  admissions  to  hospitals. 


554     THE  ELEMENTS  OF  INTERNATIONAL  LAW 

The  Bureau  of  Information  is  also  to  receive,  centralize,  and  trans- 
mit to  the  properly  interested  parties  all  articles  of  personal  prop- 
erty, valuables,  letters,  etc.,  which  shall  have  been  found  on  the  field 
of  battle  or  left  by  deceased  prisoners  in  ambulances  and  hospitals. 

Art.  XV.  Societies  for  the  relief  of  prisoners  of  war,  regularly  es- 
tablished under  the  laws  of  their  respective  countries,  whose  purpose 
it  is  to  become  the  intermediaries  of  charitable  action,  shall  receive 
on  the  part  of  belligerents,  for  themselves  and  for  their  duly  credited 
agents,  every  facility  within  the  limits  prescribed  by  military  neces- 
sity and  the  rules  of  administration  to  effectively  accomplish  their 
humane  purpose.  Delegates  of  these  societies  may  be  admitted  to 
distribute  aid  in  the  depots  of  internment,  as  well  as  in  the  halting- 
places  of  prisoners  who  are  being  sent  back  to  their  own  country,  by 
means  of  a  personal  permit,  issued  by  proper  military  authority,  and 
on  condition  that  they  take  an  engagement  in  writing  to  submit  to 
all  measures  of  discipline  and  police  that  may  be  prescribed  by  the 
latter. 

Art.  XVI.  Bureaus  of  Information  shall  be  entitled  to  freedom  of 
transport.  Letters,  or  drafts,  and  sums  of  money,  as  well  as  postal 
packages  addressed  to  prisoners  of  war,  or  sent  by  them,  shall  be 
exempt  from  all  postal  dues,  not  only  in  the  countries  of  origin  and 
destination,  but  also  in  intermediate  countries.  Charitable  gifts  and 
relief  in  kind  destined  for  prisoners  of  war  shall  be  admitted  free  of 
import  duty,  and  shall  be  transported  free  of  cost  on  railways  oper- 
ated by  the  state. 

Art.  XVII.  Officers  who  are  prisoners  of  war  shall  receive  the 
portion,  if  any  there  be,  of  the  pay  allowed  them,  as  prisoners  of  war, 
by  the  regulations  of  their  own  country,  on  condition  that  it  be  reihi- 
bursed  by  their  own  government. 

Art.  XVIII.  Every  latitude  shall  be  allowed  to  prisoners  of  war 
for  the  free  exercise  of  religious  belief,  in  which  shall  be  included 
the  right  to  attend  religious  service,  upon  the  single  condition  that 
they  conform  to'  the  measures  of  discipline  and  police  prescribed  Tiy 
the  proper  military  authority. 

Art.  XIX.  Wills  of  prisoners  of  war  are  accepted  or  drawn  up  on 
the  same  conditions  as  for  soldiers  of  the  national  army.  The  same 
rules  will  be  followed  in  all  matters  concerning  documents  relating 
to  the  identification  of  the  deceased,  and  to  the  burial  of  prisoners 
of  war,  regard  being  had  to  their  rank  and  grade. 


APPENDIX   E 


555 


Art.  XX.  After  the  conclusion  of  peace  the  return  of  prisoners  of 
war  to  their  own  country  shall  be  accomplished  with  the  least  pos- 
sible delay. 

Chapter  III.— The  Sick  and  Wounded 

Art.  XXI.  The  obligations  of  belligerents  in  respect  to  the  sick 
and  wounded  are  regulated  by  the  Geneva  Convention  of  August  22, 
1864,  except  as  to  the  modifications  which  may  be  made  in  that  in- 
strument. 

SECTION    II. — HOSTILITIES 

Chapter  I. — Means  of  Injuring  the  Enemy— Sieges  and  Bombardments 

Art.  XXII.  Belligerents  are  not  unlimited  as  to  their  choice  of 
means  of  injuring  the  enemy. 

Art.  XXIII.  Besides  the  prohibitions  established  by  special  agree- 
ments, it  is  especially  forbidden  : 

(a.)  To  employ  poison  or  poisoned  arms. 

(l>.)  To  kill  or  wound  by  treachery  individuals  belonging  to  the 
nation  or  army  of  the  enemy. 

(c.)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or 
having  no  longer  the  means  of  defending  himself,  has  surrendered 
unconditionally. 

(t/.)  To  declare  that  quarter  will  not  be  given. 

(e.)  To  employ  arms,  projectiles,  or  substances  which  are  calcu- 
lated to  cause  unnecessary  pain. 

(/.)  To  make  unlawful  use  of  flags  of  truce,  or  the  national  flag, 
or  military  insignia,  or  uniform  of  the  enemy,  or  the  distinctive  signs 
of  the  Geneva  Convention. 

(g.)  To  destroy  or  seize  the  property  of  the  enemy,  except  when 
such  destruction  or  seizure  may  be  imperiously  demanded  by  the 
necessities  of  the  war. 

Art.  XXIV.  Stratagems  of  war  and  the  employment  of  the  means 
necessary  to  secure  information  as  to  the  enemy  and  the  theatre  of 
military  operations  are  lawful. 

Art.  XXV.  It  is  forbidden  to  attack  or  to  bombard  towns,  vil- 
lages, houses,  or  dwellings  which  are  not  defended. 

Art,  XXVI.  The  commander  of  the  attacking  troops,  before  un- 


556  THE    ELEiMENTS   OF    liNTERNATIONAL   LAW 

dertaking  a  bombardment,  will,  except  in  case  of  an  open  assault,  do 
all  that  lies  in  his  power  to  give  warning  to  the  authorities. 

Art.  XXVII.  In  sieges  and  bombardments  every  precaution  is  to 
be  taken  to  spare,  as  much  as  possible,  buildings  devoted  to  religious 
worship,  to  the  arts  or  sciences,  to  charity,  and  to  hospitals  and  places 
where  the  sick  and  wounded  are  collected,  provided  they  are  not  used 
at  the  same  time  for  military  purposes. 

Art.  XXVIII.  It  is  forbidden  to  give  over  to  pillage  even  a  place 
taken  by  assault. 

Chapter  II. — Spies 

Art.  XXIX.  An  individual  cannot  be  considered  a  spy  unless, 
acting  clandestinely  or  under  false  pretences,  he  obtains,  or  seeks 
to  obtain,  information  in  the  zone  of  a  belligerent's  operations,  with 
intent  to  communicate  it  to  the  opposite  party.  Military  persons, 
therefore,  who,  not  being  in  disguise,  have  penetrated  into  the  zone 
of  operations  of  the  enemy's  army,  with  a  view  to  obtain  information, 
are  not  to  be  considered  as  spies.  In  the  same  manner  military  per- 
sons or  civilians  charged  with  the  conveyance  of  despatches  to  their 
own  army  or  to  that  of  the  enem}',  and  executing  their  mission  openly, 
are  not  to  be  considered  as  spies.  To  this  class  belong,  also,  persons 
who  are  sent  in  balloons  to  transmit  despatches,  and,  in  general,  to 
keep  up  communications  between  separated  parts  of  an  army  or  ter- 
ritory. 

Art.  XXX.  A  spy  taken  in  the  act  cannot  be  punished  without  a 
preliminary  trial. 

Art.  XXXI.  A  spy  who,  having  rejoined  the  army  to  which  he  is 
attached,  is  subsequently  captured  by  the  enemy,  shall  be  treated 
as  a  prisoner  of  war,  and  shall  incur  no  liability  for  his  previous  acts 
of  espionage. 

Chapter  III.— Flags  of  Truce 

Art.  XXXII.  An  individual  who  is  authorized  by  one  belligerent 
to  enter  into  communication  with  the  other,  and  who  presents  him- 
self with  a  white  flag,  is  regarded  as  the  bearer  of  a  flag  of  truce. 
He  has  the  quality  of  inviolability,  as  do  the  trumpeter,  bugler,  or 
drummer,  and  the  flag-bearer  and  interpreter  who  accompany  him. 

Art.  XXXIII.  The  commander  to  whom  a  flag  of  truce  is  sent  is 
not  obliged  to  receive  it  under  all    circumstances.      He  may  take 


APPENDIX    E  557 

all  necessary  measures  to  prevent  the  bearer  of  the  flag  from  profit- 
ing by  his  mission  to  obtain  information.  He  has  the  right,  in  case 
of  abuse,  to  detain  the  bearer  of  the  flag  temporarily. 

Art.  XXXIV.  The  bearer  of  a  flag  of  truce  forfeits  his  quality  of 
inviolability  if  it  is  proved,  in  a  positive  and  unexceptionable  man- 
ner, that  he  has  profited  by  his  privileged  position  to  provoke  or  to 
commit  an  act  of  treachery. 

Chapter  IV. — Capitulations 

Art.  XXXV.  Articles  of  capitulation  entered  into  between  the 
contracting  parties  are  to  take  into  account  the  rules  of  military 
honor.  Once  decided  upon,  these  capitulations  are  to  be  scru- 
pulously observed  by  both  parties. 

Art.  XXXVI.  An  armistice  suspends  the  operations  of  war  by 
mutual  agreement  of  the  belligerent  parties.  If  its  duration  is  not 
fixed,  the  belligerent  parties  may  resume  operations  at  any  time, 
provided,  however,  that  the  enemy  is  warned,  at  the  time  agreed 
upon,  in  conformity  with  the  conditions  of  the  armistice. 

Art.  XXXVII.  The  armistice  may  be  either  general  or  local. 
The  first  suspends  the  military  operations  between  the  belligerent 
states  everywhere;  the  second  suspends  such  operations  only  as 
to  certain  fractions  of  the  belligerent  armies  and  in  a  determined 
radius. 

Art.  XXXVIII.  The  armistice  should  be  notified,  officially  and 
in  due  course,  to  the  proper  authorities  and  to  the  troops.  Hostili- 
ties are  suspended  immediately  after  the  notification  or  at  the  time 
agreed  upon. 

Art.  XXXIX.  It  depends  on  the  contracting  parties  to  fix  in  the 
clauses  of  the  armistice  the  relations  which  may  exist  with  the  popu- 
lation and  with  each  other  in  the  theatre  of  war. 

Art.  XL.  Every  serious  violation  of  the  armistice  by  either  party 
gives  to  the  other  the  right  to  disavow  the  same,  and  even,  in  case 
of  urgency,  to  resume  hostilities  immediately. 

Art.  XLI.  The  violation  of  the  provisions  of  an  armistice  by  in- 
dividuals, acting  on  their  own  initiative,  confers  the  right  only  to 
demand  the  punishment  of  the  offenders,  and,  if  need  be,  an  indem- 
nity for  the  damage  sustained. 


558  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

SECTION  HI. — MILITARY  AUTHORITY  IN  THE  TERRITORY  OF  THE  ENEMY 

Art.  XLII.  Territory  is  regarded  as  occupied  when  it  finds  itself 
placed  in  fact  under  the  authority  of  the  hostile  army.  The  occu- 
pation includes  only  the  territory  where  that  authority  is  established 
and  in  a  position  to  be  exercised. 

Art.  XLIII.  The  lawful  authority  having  passed,  in  fact,  into  the 
hands  of  the  occupant,  he  will  take  all  steps  which  depend  upon 
him  with  a  view  to  re-establish  order,  as  far  as  possible,  by  respect- 
ing, save  in  case  of  absolute  impediment,  the  laws  in  force  in  the 
country. 

Art.  XLIV.  It  is  forbidden  to  compel  the  population  of  an  occu- 
pied territory  to  take  part  in  military  operations  against  their  own 
country. 

Art.  XLV.  It  is  forbidden  to  constrain  the  population  of  an  oc- 
cupied territory  to  recognize,  by  the  taking  of  an  oath,  the  power  of 
the  enemy. 

Art.  XLVI.  Family  honor  and  rights,  the  lives  of  individuals  and 
their  private  property,  as  well  as  their  religious  convictions  and  the 
right  of  public  worship,  are  to  be  respected.  Private  property  is  not 
to  be  confiscated. 

Art.  XLVII.  Pillage  is  expressly  prohibited. 

Art.  XLVIII.  If  the  occupant  collects  in  the  occupied  territory 
the  imposts,  duties,  and  tolls  established  for  the  benefit  of  the  state, 
he  shall  do  so,  as  far  as  possible,  in  accordance  with  existing  rules 
of  assessment  and  apportionment,  and  the  obligation  shall  devolve 
upon  him  of- providing  for  the  expenses  of  the  administration  of  the 
occupied  territory  in  the  proportion  to  which  the  legal  government 
was  bound  to  contribute. 

Art.  XLIX.  If,  in  addition  to  the  imposts  contemplated  in  the 
preceding  article,  the  occupant  levies  other  money  contributions  in 
the  occupied  territory,  he  can  do  so  only  to  the  extent  of  the  needs 
of  the  army  or  the  administration  of  the  occupied  territory. 

Art.  L.  No  collective  penalty,  pecuniary  or  otherwise,  shall  be 
imposed  upon  communities  because  of  individual  acts  for  which  they 
could  not  be  regarded  as  collectively  responsible. 

Art.  LI.  No  contribution  shall  be  collected  save  in  virtue  of  an 
order  given  in  writing,  and  on  the  responsibility  of  a  general-in-chief. 
This  method  of  collection  shall  be  resorted  to  only  in  accordance 


APPENDIX    E  559 

with  the  existing  rules  of  assessment  and  apportionment.     For  every 
contribution  a  receipt  shall  be  given  to  the  contributor. 

Art.  LII.  Requisitions  in  kind  and  compulsory  service  shall  be 
demanded  only  of  communities  or  inhabitants  for  the  needs  of  the 
army  of  occupation.  They  shall  bear  relation  to  the  resources  of  the 
community,  and  shall  be  of  such  nature  as  not  to  imply  an  obligation 
on  the  part  of  the  population  to  take  part  in  military  operations 
against  their  own  country. 

These  requisitions  and  services  shall  be  demanded  only  with  the 
authority  of  the  commander  of  the  occupied  locality.  Levies  in  kind 
shall,  as  far  as  possible,  be  paid  for  in  cash  ;  if  not,  they  shall  be 
verified  by  receipts. 

Art.  LIII.  The  army  which  occupies  a  territory  can  seize  only 
the  cash,  funds,  and  bills  receivable,  properly  belonging  to  the  state 
itself,  means  of  transportation,  depots  of  arms,  magazines,  and  sup- 
plies, and,  in  general,  all  movable  property  of  the  state  which  may 
be  useful  in  military  operations. 

Railway  material,  land  telegraphs,  telephones,  steamers,  and  other 
vessels  outside  the  cases  regulated  by  the  maritime  law  of  war,  as 
well  as  depots  of  arms,  and,  in  general,  all  sorts  of  munitions  of 
war,  even  when  belonging  to  corporations  or  private  individuals,  are 
equally  things  susceptible  of  use  in  military  operations,  but  shall  be 
restored,  and  indemnifications  shall  be  agreed  upon  at  the  establish- 
ment of  peace. 

Art.  LIV.  Railway  material  coming  from  neutral  states,  whether 
the  property  of  such  states  or  of  corporations  or  private  individuals, 
shall  be  sent  back  as  soon  as  possible. 

Art.  LV.  The  occupying  state  shall  regard  itself  only  as  the  ad- 
ministrator of  the  occupied  territory,  and  as  in  enjoyment  of  the 
usufruct  of  the  public  buildings,  landed  estates,  forests,  and  agricult- 
ural interests  belonging  to  the  state.  It  shall  be  his  duty  to  protect 
the  capital  of  these  properties,  and  to  administer  them  in  accordance 
with  the  principles  of  usufruct. 

Art.  LVI.  Town  property  and  the  property  of  establishments  con- 
secrated to  religious  worship,  to  charity  and  education,  and  to  the 
arts  and  sciences,  even  when  belonging  to  the  state,  shall  be  treated 
as  private  property.  All  seizure,  destruction,  or  intentional  deface- 
ment of  such  establishments,  of  historical  monuments,  of  works  of  art 
or  of  science,  is  prohibited,  and  the  offenders  shall  be  prosecuted. 


560  THE  ELEMENTS   OF   INTERNATIONAL  LAW 

SECTION    IV.  —  BELLIGERENTS    INTERNED    AND    WOUNDED    CARED     FOR 
IN    NEUTRAL    TERRITORY 

Art.  LVII.  The  neutral  state  which  receives  in  its  territory  troops 
belono-ing  to  the  belligerent  armies  shall  intern  them  whenever  pos- 
sible at  a  distance  from  the  theatre  of  war.  It  may  detain  them  in 
camps,  and  may  even  confine  them  in  fortresses  or  other  places 
adapted  to  the  purpose.  It  shall  decide  whether  the  officers  are  to 
be  set  free,  on  giving  their  paroles  not  to  quit  the  neutral  territory 
without  authority. 

Art.  LVIII.  In  the  absence  of  a  special  agreement,  the  neutral 
state  shall  furnish  the  interned  troops  with  subsistence  and  clothing 
and  the  relief  demanded  by  humanity.  Indemnification  shall  be 
made,  when  peace  is  declared,  for  the  expenses  occasioned  by  the 
internment. 

Art.  LIX.  A  neutral  state  may  authorize  the  passage  over  its  ter- 
ritory of  the  sick  and  wounded  belonging  to  the  belligerent  armies, 
subject  to  the  qualification  that  the  trains  which  carry  them  shall 
convey  neither  the  personnel  nor  material  of  war.  In  such  case  a 
neutral  state  is  bound  to  resort  to  such  measures  of  security  and 
control  as  are  necessary  to  accomplish  this  result. 

Sick  and  wounded  brought  into  neutral  territory,  under  such  con- 
ditions, by  one  of  the  belligerents,  and  who  may  belong  to  the  adverse 
party,  shall  be  held  by  the  neutral  state  in  such  a  manner  that  they 
cannot  again  take  part  in  the  operations  of  war.  The  latter  shall 
have  the  same  obligations  in  respect  to  the  sick  and  wounded  as  are 
provided  for  in  the  former  case. 

Art.  LX.  The  Geneva  Convention  applies  to  the  sick  and  wounded 
interned  in  neutral  territory. 

AGREEMENT  CONCERNING  THE  LAWS  AND  USAGES  OF  WAR 

ON  LAND 

Art.  I.  The  high  contracting  parties  shall  issue  instructions  to 
their  armed  land  forces  which  shall  be  in  conformity  to  the  Rules 
concerning  War  on  Land  annexed  to  the  present  Convention. 

Art.  II.  The  provisions  contained  in  the  rule  contemplated  in 
Article  I.  are  obligatory  only  upon  the  contracting  powers  in  the 
event  of  war  between  two  or  more  of  them.  These  provisions  shall 
cease  to  be  binding  from  the  instant  at  which,  in  a  war  between 


APPENDIX  E  561 

contracting  powers,  a  non-contracting' power  shall  be  associated  with 
one  of  the  belligerents. 

Art.  III.  The  present  Convention  shall  be  ratified  with  the  least 
possible  delay.  The  ratifications  shall  be  deposited  at  The  Hague. 
On  the  deposit  of  each  ratification  a  minute  shall  be  prepared,  one 
copy  of  which,  properly  certified,  shall  be  transmitted,  through  dip- 
lomatic channels,  to  each  of  the  contracting  powers. 

Art.  IV.  Non-signatory  powers  are  permitted  to  become  parties 
to  this  Convention.  For  that  purpose  they  shall  make  known  their 
acceptance  to  the  contracting  powers,  by  means  of  a  notification  in 
writing,  addressed  to  the  government  of  the  Netherlands,  and  com- 
municated by  that  government  to  the  other  contracting  powers. 

Art.  V.  If  it  should  happen  that  one  of  the  high  contracting 
parties  should  disavow  the  present  Convention,  such  disavowal  shall 
not  become  operative  until  a  written  notification  thereof  shall  have 
been  made  to  the  government  of  the  Netherlands,  and  immediately 
communicated  by  the  latter  to  all  of  the  other  contracting  powers. 
This  disavowal  shall  become  operative  only  in  so  far  as  it  concerns 
the  power  which  shall  have  given  notice  of  it. 

Executed  at  The  Hague,  on  the  29th  day  of  July,  1899,  in  an 
original  which  shall  remain  on  deposit  in  the  archives  of  the  gov- 
ernment of  the  Netherlands,  and  of  which  duly  certified  copies  shall 
be  submitted  to  the  contracting  powers  through  diplomatic  channels. 

AGREEMENT  FOR  THE  ADAPTATION  OF  MARITIME  WARFARE 
TO  THE  RULES  OF  THE  GENEVA  CONVENTION  OF  AUGUST 
22    1864. 

Art.  I.  Military  hospital  ships — that  is,  ships  constructed  or  fitted 
out  by  states  especially  and  solely  with  a  view  to  give  assistance  to 
the  sick,  wounded,  and  shipwrecked — the  names  of  which  shall  have 
been  communicated  to  the  belligerent  powers  at  the  opening  or  dur- 
ing the  continuance  of  hostilities,  and,  in  every  case,  before  being 
placed  in  service,  are  to  be  respected  and  may  not  be  captured  dur- 
ing the  continuance  of  hostilities.  These  vessels  are  not  assimi- 
lated to  ships-of-war  in  matters  pertaining  to  their  sojourn  in  neutral 
ports. 

Art.  II.  Hospital  ships  equipped,  wholly  or  in  part,  at  the  ex- 
pense of  private  individuals,  or  aid  societies  which  have  been  offi- 


562  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

cially  recognized,  are  equally  to  be  respected  and  exempted  from  capt- 
ure, if  the  belligerent  power  to  which  they  are  attached  has  given 
•them  an  official  commission,  and  has  notified  their  names  to  the  ad- 
verse power  at  the  opening  of  hostilities,  or  during  their  progress, 
but  in  every  case  before  being  placed  in  service.  These  ships  shall 
carry  a  document,  from  competent  authority,  declaring  that  they 
have  been  subjected  to  its  inspection  during  their  equipment  and  at 
their  final  departure. 

Art.  III.  Hospital  ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals,  or  of  societies  officially  recognized  by  neu- 
tral states,  are  to  be  respected  and  exempted  from  capture  if  the 
neutral  power  to  which  they  are  subject  issues  commissions  to  them 
and  notifies  their  names  to  the  belligerent  powers  at  the  outbreak  of 
hostilities  or  during  their  continuance,  but  in  all  cases  before  being 
placed  in  service. 

Art.  IV,  Ships  mentioned  in  Articles  I.,  II.,  and  III.  shall  carry 
aid  and  assistance  to  the  sick,  wounded,  and  shipwrecked  individuals 
of  the  belligerent  armies  without  distinction  of  nationality.  The 
governments  agree  not  to  use  these  ships  for  any  warlike  purpose. 
These  ships  shall  not  embarrass  in  any  manner  the  movements  of 
the  combatants.  During  and  after  the  combat  they  shall  act  at  their 
own  risk  and  hazard.  Belligerents  shall  have  the  right  to  visit  and 
inspect  them ;  they  may  refuse  assistance  to  them,  or  require  them 
to  remove  to  a  distance,  or  impose  upon  them  a  fixed  sailing  course, 
and  may  place  a  commissioner  on  board;  they  may  even  detain  them 
if  circumstances  demand  it.  As  far  as  possible  orders  given  by  bel- 
ligerents to  hospital  ships  shall  be  entered  in  their  log-books. 

Art.  V.  Military  hospital  ships  shall  be  distinguished  by  an  ex- 
terior coloring  of  white  with  a  green  horizontal  band  of  about  one 
metre  and  a  half  in  width.  Ships  mentioned  in  Articles  II.  and  III. 
shall  be  distinguished  by  an  exterior  coloring  of  white  with  a  red 
horizontal  band  of  about  one  metre  and  a  half  in  width.  The  small 
boats  of  the  ships  just  mentioned,  as  well  as  the  small  boats  which 
may  be  employed  in  hospital  service,  shall  be  distinguished  by  sim- 
ilar painting.  All  hospital  ships  shall  be  recognized  by  hoisting 
with  their  national  flags  the  red  cross  emblazoned  upon  the  white 
flag,  as  prescribed  by  the  Geneva  Convention. 

Art.  VI.  Commercial  vessels,  yachts,  or  neutral  small  boats  con- 
veying or  receiving  sick,  wounded,  or  shipwrecked  persons  are  not 


APPENDIX    E  563 

liable  to  capture  for  engaging  in  such  transport ;  but  they  remain 
liable  to  capture  for  any  violations  of  neutrality  which  they  may 
have  committed. 

Art.  VII.  The  personnel  of  the  medical  and  hospital  service,  in- 
cluding chaplains,  of  every  captured  vessel,  is  inviolable  and  cannot 
be  made  prisoners  of  war.  They  carry  away  with  them,  on  quitting  the 
ship,  the  surgical  instruments  and  appliances  which  are  their  personal 
property.  These  persons  shall  continue  to  perform  their  functions 
so  long  as  may  be  necessary,  and  they  may  be  withdrawn  when  the 
commander-in-chief  deems  such  withdrawal  possible.  Belligerents 
are  to  secure  to  such  persons  who  may  fall  into  their  hands  the  full 
enjoyment  of  their  salaries. 

Art.  VIII.  Persons  in  the  military  or  naval  service,  to  whatever 
nation  they  may  belong,  who  are  sick,  wounded,  or  shipwrecked, 
shall  be  protected  and  cared  for  by  their  captors. 

Art.  IX.  Sick,  wounded,  and  shipwrecked  persons  in  the  ser- 
vice of  a  belligerent  who  fall  into  the  hands  of  the  enemy  become 
prisoners  of  war.  It  is  for  the  enemy  to  decide,  according  to  the 
circumstances  of  the  case,  whether  it  is  expedient  to  hold  them,  to 
send  them  to  a  port  of  their  own  nation,  or  to  a  neutral  port,  or 
even  to  a  port  of  the  enemy.  In  the  last  case  the  prisoners  so 
returned  to  their  country  cannot  serve  during  the  continuance  of 
the  war. 

Art.  X.  Sick,  wounded,  or  shipwrecked  persons  who  are  sent  to 
a  neutral  port,  with  the  consent  of  the  local  authority,  shall,  unless  a 
contrary  arrangement  be  entered  into  between  the  neutral  state  and 
the  belligerents,  be  subjected  to  such  restraint  by  the  neutral  state 
that  it  will  be  impossible  for  them  to  again  take  part  in  the  opera- 
tions of  the  war.  The  expenses  of  hospital  treatment  and  internment 
of  the  sick,  wounded,  and  shipwrecked  shall  be  borne  by  the  state 
to  which  they  belong. 

Art.  XI.  The  rules  contained  in  the  foregoing  article  are  obliga- 
tory only  upon  the  contracting  powers  in  the  event  of  war  between 
two  or  more  of  them.  The  said  rules  shall  cease  to  be  obligatory 
from  the  instant  when,  in  a  war  between  contracting  powers,  a  non- 
contracting  power  joins  one  of  the  belligerents. 

Art.  XII.  The  present  Convention  shall  be  ratified  with  the  brief- 
est possible  delay.  The  ratifications  shall  be  deposited  at  The 
Hague ;  a  minute  shall  be  prepared,  on  the  deposit  of  each  ratifrca- 


564  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

tion,  of  which  a  properly  authenticated  copy  shall  be  transmitted, 
through  diplomatic  channels,  to  each  of  the  contracting  powers. 

Art.  XIII.  Non-signatory  powers  who  have  accepted  the  Geneva 
Convention  of  August  22,  1864,  are  permitted  to  adhere  to  this  Con- 
vention. To  that  end  they  shall  make  known  their  adhesion  to  the 
contracting  powers  by  a  notification  in  writing,  addressed  to  the 
government  of  the  Netherlands,  and  communicated  by  it  to  all  of 
the  other  contracting  powers. 

Art.  XIV.  If  it  should  happen  that  one  of  the  high  contracting 
parties  should  disavow  the  present  Convention,  such  disavowal  shall 
not  become  operative  until  one  year  after  it  shall  have  been  notified, 
in  writing,  to  the  government  of  the  Netherlands  and  immediately 
communicated  by  the  latter  to  all  of  the  other  high  contracting 
powers.  This  disavowal  shall  be  operative  only  in  respect  to  the 
power  which  shall  have  given  notice  of  it. 

Done  at  The  Hague  this  29th  day  of  July,  1899. 


DECLARATIONS  OF  THE  PEACE  CONFERENCE  AT  THE  HAGUE 

I. — Throwing  Projectiles  and  Explosives  from  Balloons 

Declaration. — The  contracting  powers  agree,  for  a  period  of  five 
years,  to  forbid  the  throwing  of  projectiles  and  explosives  from  bal- 
loons or  by  other  new  methods  of  a  similar  nature.' 

II. — Projectiles  which  Diffuse  Asphyxiating  Gases 

Declaration. — The  contracting  powers  agree  to  forbid  the  em- 
ployment of  projectiles  which  have  for  their  sole  purpose  the  diffu- 
sion of  asphyxiating  or  deleterious  gases." 

III. — Use  of  Expanding  Projectiles 

Declaration. — The  contracting  powers  agree  to  forbid  the  em- 
IDloyment  of  bullets  which   expand  ^  or  flatten  easily  in  the  human 

'  This  declaration,  which  was  unani-  the  same  conference.     See  Articles  I.  to 

mously  agreed  to,  contains  the  same  pro-  V.,  pp.  560,  561,  ante. 

visions  in  respect  to   the  parties  to  its  ^  Not  accepted  by  England  and.  the 

operation  and  the  same  requirements  as  United  States.      See  note  i,  supra. 

to  ratification,  adhesion,   and  disavowal  '  The  expansive  action  of  small-arm 

as  the  Convention  regarding  the  Laws  projectiles,   which   is    described   in   the 

and  Usages  of  War  on  Land  adopted  by  French  text  of  the  Convention  by  the 


APPENDIX    E 


565 


body,  such  as  bullets  the  jackets  of  which  do  not  entirely  cover  the 
core  or  are  provided  with  incisions.' 


term  sVpanouissent,  is,  perhaps,  more 
accurately  described  by  tlie  use  of  the 
term  "to  mushroom,"  whicli  has  been 
adopted  to  explain  the  exact  nature  of 
the  injury  inflicted  by  the  penetration 
of  the  projectile  into  animal  tissues. 

'  Not  accepted  by  England  and  the 
United  States.  See  note  i,  supra. 
In  a  report  submitted  to  the  Confer- 
ence by  a  committee  charged  with 
the  preparation  of  a  rule  interdicting 
the  use  of  certain  objectionable  small- 
arm  projectiles  in  war,  two  powers, 
Great  Britain  and  the  United  States, 
were  recorded  as  voting  against  the 
rule  proposed  by  the  committee,  and 
finally  adopted  by  the  Conference ; 
but  no  reasons  for  their  negative  votes 
accompanied  the  report.  As  the  objec- 
tions of  the  powers  above  named  had 
to  do,  not  with  the  end  proposed,  but 
with  the  means  of  attaining  that  end, 
an  amendment  was  submitted  at  a  sub- 
sequent session  of  the  Conference  by 
Captain  Crozier,  of  the  American  dele- 
gation, in  the  following  terms:  "The 
use  of  bullets  which  inflict  wounds  of 
useless  cruelty — such  as  explosive  bul- 
lets, and,  in  general,  every  kind  of  bul- 
let which  exceeds  the  limit  necessary  for 
placing  a  man  immediately  kors  de  coin- 
bat — should  be  forbidden."  The  reasons 
advanced  by  Captain  Crozier  in  support 
of  his  amendment  may  be  summarized 
as  follows  :  The  proposition  of  the  com- 
mittee is  based  upon  the  mechanical 
construction  of  a  particular  bullet,  and 
upon  the  injury  which  is  believed  to 
follow  its  use — that  is,  the  prohibition 
extends  to  "bullets  which  expand  or 
flatten  easily  in  the  human  body,  such 
as  jacketed  bullets,  of  which  the  jacket 
does  not  entirely  cover  the  core,  or  con- 
tains incisions."  The  rule  of  war  ap- 
plicable to  the  case  in  point  is  an  old 
one  and  permits  of  the  infliction  of  just 
so  much  injury  to  an  individual  com- 
batant as  will  suffice  to  place  him  im- 
mediately hfli-s  de  combat.  Just  this 
amount  of  injury,  and  no  more, is  lawful; 
anything  beyond  this  is  unauthorized. 
The  St.  Petersburg  Conference  added 


nothing  to  the  scope  of  this  rule,  which 
had  long  been  understood  and  applied 
by  modern  states  in  the  conduct  of  mil- 
itary operations.  It,  therefore,  rested 
with  a  simple  restatement  of  the  rule, 
and,  in  its  declaration  upon  the  subject, 
placed  an  express  prohibition  upon  the 
only  small-arm  projectile  then  known — 
the  explosive  ballet — which  was  calcu- 
lated to  inflict  needless  or  unnecessary 
injury.  If  this  were  all,  there  would 
be  no  need  at  this  time  to  attempt  to 
extend  the  scope  of  the  rules  regulat- 
ing the  infliction  of  injury  upon  indi- 
vidual combatants  in  time  of  war,  or  to 
place  a  limitation  upon  the  field  of 
development  or  invention.  The  gen- 
eral adoption  of  the  small-caliljer  bul- 
let, however,  operates  to  reopen  the 
question  to  some  extent  and  makes  it 
necessary  in  the  interest  of  humanity 
to  place  some  restriction  upon  the  de- 
velopment of  small-caliber  projectiles ; 
and  the  need  of  a  restriction  in  this  re- 
gard grows  out  of  the  very  nature  of 
the  small-caliber  projectile  itself.  A  bul- 
let accomplishes  its  purpose,  of  placing 
a  man  hors  de  combat,  by  the  sliock 
which  follows  its  impact  upon  the  hu- 
man body.  This  shock  depends  upon 
the  might  and  velocity  of  the  projectile, 
and,  to  an  appreciable  extent,  upon  its 
form  and  construction  as  well.  The  old 
form  of  bullet  easily  accomplished  this 
purpose  ;  the  new  small-arm  bullet  does 
not — certainly  in  all  cases ;  and  the  shock 
attending  its  impact  may  be,  and  in  some 
well  -  authenticated  instances  has  been 
known  to  be,  so  slight  as  to  fail  to  place 
the  individual  hors  de  combat.  To  in- 
crease this  effect,  therefore,  so  as  to 
bring  it  up  to  the  limit  allowed  by  the 
rules  of  civilized  warfare,  it  is  necessary 
to  add  to  the  shock  of  impact  by  in- 
creasing the  severity  of  the  wound  in- 
flicted by  the  small-caliber  projectile  ; 
and  it  is  in  connection  with  such  an  in- 
crease in  its  wounding  power  that  the 
need  of  a  rule  becomes  immediately  ap- 
parent. The  rule  suggested  by  Captain 
Crozier  makes  the  nature  and  extent 
of  the  injury  inflicted  by  the  bullet  the 


566  THE   ELEMENTS   OF   INTERNATIONAL  LAW 


RECOMMENDATIONS    OF    THE    PEACE    CONFERENCE    AT    THE 
HAGUE,   ADOPTED   JULY   29,    1899 

The  Conference  is  of  opinion  that  the  limitation  of  the  military 
burdens  which  now  weigh  so  heavily  upon  the  world  is  highly  desir- 
able for  the  enlargement  of  the  moral  and  material  well-being  of 
humanity.' 

I.  The  Conference,  in  view  of  the  steps  already  taken  by  the  Fed- 
eral Government  of  Switzerland,  with  a  view  to  the  revision  of  the 
Geneva  Convention,  gives  expression  to  the  desire  that  it  be  suc- 
ceeded by  the  meeting  of  a  conference  having  for  its  object  the  re- 
vision of  that  Convention.' 

IL  The  Conference  gives  expression  to  the  desire  that  the  ques- 
tion of  the  rights  and  duties  of  neutrals  be  inscribed  on  the  pro- 
gramme of  the  next  Conference.^ 

III.  The  Conference  gives  expression  to  the  desire  that  the  ques- 
tions relating  to  marine  artillery  and  small-arms,  such  as  have  been 
investigated  by  it,  be  studied  by  governments  with  a  view  to  reach 
an  understanding  in  respect  to  new  types  and  calibers." 

IV.  The  Conference  gives  expression  to  the  desire  that  govern- 
ments, taking  account  of  the  propositions  made  to  the  Conference, 
should  study  the  possibility  of  an  understanding  in  respect  to  the 
limitations  of  military  and  naval  forces  and  war  budgets." 

V.  The  Conference  gives  expression  to  the  desire  that  the  prop- 
osition having  for  its  object  the  inviolability  of  private  property  in 
maritime  warfare  should  be  referred  to  a  future  conference  for  in- 
vestigation." 

VI.  The  Conference  gives  expression  to  the  desire  that  the  prop- 
osition to  regulate  the  question  of  the  bombardment  of  ports,  towns, 
villages,  by  naval  forces  should  be  referred  to  a  future  conference.* 

test  of  conformity  to  the  rule  ;  the  prop-  upon  the  lines  laid  down  by  Captain 
osition  submitted  by  the  committee  re-  Crozier  in  his  amendment  was  not  adopt- 
stricts  the  test  to  a  particular  mechan-  ed  by  the  Conference,  with  the  addition, 
ical  construction,  or  to  a  "  bullet  which  if  need  be,  of  such  general  terms  of  de- 
expands  or  flattens  easily  in  the  human  scription  as  would  prohibit  the  use  in 
body  "  ;  any  other  method  of  increasing  war  of  any  small-caliber  projectile  which 
the  shock,  which  avoids  the  conditions  is  calculated  to  inflict  wounds  of  need- 
above  stated,  may  be  adopted  by  a  sig-  less  or  unnecessary  cruelty, 
natory  party  without  transgressing  the  '  This  resolution  was  unanimously 
technical  requirements  of  the  rule  pro-  agreed  to. 

posed  by  the  Conference.     It  is  greatly  ^  Agreed  to  by  the  Conference  with 

to  be  regretted  that  a  proposition  drawn  some  abstentions  from  voting, 


APPENDIX  F 

THE   LAWS   OF  WAR  ON   LAND 

Recommended   for   Adoption    by  the   Institute   of    Interna- 
tional Law  at  its  Session  in  Oxford,  September  9,  1880 

History 

At  the  Brussels  session  of  the  Institute,  in  1879,  a  commission  of 
fifteen  members  was  appointed  to  prepare  a  code,  or  manual,  of  the 
rules  of  war  on  land.  The  task  of  collecting  the  materials  and  pre- 
paring the  proposed  code  was  intrusted  to  M.  Gustave  Moynier,  of 
Geneva,  Switzerland,  the  president  of  the  International  Society  for 
the  Relief  of  the  Wounded  in  Time  of  War.  The  selection  of  M. 
Moynier  for  this  purpose  was  a  most  fortunate  one  in  every  respect ; 
and  he  addressed  himself  to  his  task  with  so  much  zeal  and  intelli- 
gence that,  in  February  of  the  following  year,  he  was  able  to  submit  to 
his  colleagues  a  draft  of  the  proposed  manual.  The  rules  prepared 
by  M.  Moynier  were  based  upon  the  following  authorities: 

(a.)  The  Instructions  for  the  Government  of  Armies  in  the  Field, 
prepared  by  Dr.  Francis  Lieber  at  the  request  of  the  United  States 
Government. 

{d.)  The  Geneva  Convention  of  August  22,  1864. 

(c.)  The  Additional  Articles  of  the  Geneva  Convention  of  October 
20,  1868. 

(</.)  The  Declaration  of  St.  Petersburg  of  November  4-16,  1868. 

(<?.)  The  Declaration  of  Brussels  of  1874. 

{/.)  The  Official  Manuals  recently  adopted  by  the  governments  of 
France,  Russia,  and  Holland. 

The  code  thus  prepared  was  submitted  to  the  members  of  the  com- 
mission for  examination  and  criticism.  As  a  result  the  rules  were 
entirely  rewritten.  A  number  of  modifications  and  amendments 
suggested  by  the  members  were  embodied  in  the  work,  which  was 


568  THE   ELEMENTS   OF   INTERNATIONAL  LAW 

again  submitted  to  the  commission  for  discussion  and  final  action. 
It  was  approved  by  that  body,  and  recommended  for  acceptance. 
On  September  9,  1880,  it  was  unanimously  adopted  by  the  Institute 
of  International  Law.  By  a  later  resolution  of  the  Institute,  the 
executive  committee  was  instructed  to  bring  the  proposed  code  to 
the  notice  of  the  different  governments  of  Europe  and  America,  with 
a  view  to  its  adoption  as  a  standard,  to  which  their  laws  and  regu- 
lations on  the  subject  should  be  made  to  conform. 

This  manual  is  the  latest,  as  it  is  in  many  respects  the  best,  of 
the  many  attempts  that  have  been  made  to  frame  a  body  of  rules 
for  the  guidance  of  belligerents  in  war.  In  common  with  those  that 
have  preceded  it,  it  possesses  certain  advantages  which  may  be 
summarized  as  follows : 

(a.)  It  expresses,  with  great  accuracy  and  precision,  the  principles 
of  international  law  that  underlie  the  rules  of  war;  and  states  those 
rules,  in  considerable  detail,  as  they  existed  at  the  date  of  its  prep- 
aration. 

{b.)  In  stating  them,  it  places  upon  each  the  most  favorable  con- 
struction that  it  is  capable  of  receiving — erring,  if  at  all,  upon  the 
side  of  humanity. 

(c.)  Its  publication  tends,  to  a  certain  extent,  to  popularize  knowl- 
edge upon  a  subject  about  which  too  little  is  known. 

(d?)  By  drawing  public  attention  to  the  existing  methods  of  civil- 
ized war,  it  emphasizes  its  inevitable  hardships  and  severities,  en- 
courages investigation  and  criticism,  and  affords  an  opportunity  for 
their  further  amendment  in  the  direction  of  greater  humanity. 

On  the  other  hand,  it  is  open  to  serious  objections : 

{a.)  No  code,  or  manual,  can  cover  or  include  all  the  cases,  or 
novel  combinations  of  circumstances,  that  are  likely  to  arise  in  war. 

{b.)  The  interests  of  modern  states,  and  so  their  military  policies, 
are  so  diverse  as  to  make  it  impossible  for  any  rule,  or  set  of  rules, 
to  apply  to  all  states,  or  even  to  any  considerable  number  of  them, 
in  the  conduct  of  their  military  operations.  This  is  illustrated  by 
the  divergent,  and  in  many  cases  opposing,  views  upon  the  subjects 
of  occupied  territory,  the  employment  of  levees  en  masse,  and  the  like, 
which  are  held  by  states  of  which  England  and  Russia  are  the  ex- 
treme types. 

{c.)  The  rules  are  applied,  in  time  of  war,  by  the  commanding 
generals  of   opposing    armies  in  the  field.     Whenever  a  question 


APPENDIX   F  569 

of  doubtful  application  arises,  the  rules  are  interpreted  and  ap- 
plied to  the  case  in  point,  not  by  a  dispassionate  tribunal,  but  by  a 
party  to  the  issue.  His  decision  must,  from  the  necessities  of  the 
case,  be  based  upon  a  partial  and  one-sided  representation  of  the 
facts  in  issue  ;  and  his  ruling  can  hardly  fail  to  be  influenced,  to 
an  appreciable  extent,  by  considerations  of  military  policy  and  self- 
interest. 

id.)  An  invariable  defect  in  most  endeavors  of  this  kind  is  that 
they  attempt  too  much,  and  undertake  to  frame  rules  upon  subjects 
as  to  which  there  is  as  yet  no  unanimity  of  opinion  among  modern 
states.  A  rule  of  international  law,  to  receive  general  acceptance, 
must  be  based  upon  general  consent.  If  the  policy  of  states  varies 
as  to  a  particular  usage,  it  is  impossible  to  frame  a  rule  as  to  that 
usage  which  all  states  will  agree  to  observe.  The  rules  of  the  Ge- 
neva Convention,  and  those  of  the  Declaration  of  St.  Petersburg,  have 
received  practically  unanimous  recognition,  because  they  had  to  do 
with  practices  concerning  which  all  states  were  of  the  same  opinion.' 
The  views  held  by  different  states  as  to  the  rights  of  military  occu- 
pation and  the  government  of  occupied  territory,  and  upon  the  sub- 
jects of  requisitions  and  contributions  of  war,  are  so  diverse  as  to 
make  it  impossible  to  formulate  a  rule  by  which  any  considerable 
number  of  them  will  agree  to  be  bound  in  the  conduct  of  their  mili- 
tary operations. 

PART    FIRST2 
General  Principles 

I.  The  state  of  war  does  not  admit  of  acts  of  violence,  save 
between  the  armed  forces  of  belligerent  states.  Individuals  who 
form  no  part  of  a  belligerent  armed  force  should  abstain  from  such 
acts. 

This  rule  implies  a  distinction  between  the  individuals  who  compose 
the  armed  force  of  a  state  and  its  other  citizens  or  subjects.  A  precise 
definition  of  the  term  ^^  anned  force"  is,  therefore,  necessary. 

'  For  discussions  of  the  results  of  the  '■*  The    text     used    for    purposes    of 

rules   of  the   Brussels    Conference,    see  translation  is  that  of  the  "  Institut  de 

vol.  xxiii.  Revue  de  Droit  Int.  pp.  560-  Droit  International,"  and  will  be  found 

577;  vol.  xxiv.  Ibid.  pp.  206-212;  For.  in  the  >^«««(?2>vof  the  Institute  for  1881, 

Rel.  of  the  U.  S.  1875,  pt.  ii.  pp.  1014-  1882,  pp.  I57-I74- 
105 1. 


570  THE    ELEMENTS   OF   INTERNATIONAL   LAW 

2.  The  armed  force  of  a  state  includes  : 

ist.  The  army  proper,  or  permanent  military  establishment,  in- 
cluding the  militia  and  reserve  forces. 

2d.  The  national  guard,  landsturm,  free  corps,  and  other  bodies 
which  fulfil  the  three  following  conditions — /.  e., 

(a.)  They  must  be  under  the  direction  of  responsible  chiefs. 

(I?.)  They  must  have  a  uniform,  or  distinguishing  mark,  or  badge, 
recognizable  at  a  distance,  and  worn  by  individuals  composing  such 
corps. 

(c.)  They  must  carry  arms  openly. 

3d.  The  crews  of  public  armed  ships  and  other  vessels  used  for 
warlike  purposes. 

4th.  The  inhabitants  of  non-occupied  territory,  who,  at  the  ap- 
proach of  the  enemy,  take  arms  openly  and  spontaneously  to  resist 
an  invader,  even  if  they  have  not  had  time  to  organize. 

3.  Every  belligerent  armed  force  must  carry  on  its  military  opera- 
tions in  accordance  with  the  laws  of  war. 

T/ie  only  legitimate  end  that  a  state  may  have  in  war  is  to  weaken 
the  military  strength  of  the  enemy. 

4.  The  laws  of  war  do  not  recognize  in  belligerents  an  unlimited 
liberty  as  to  the  means  of  injuring  the  enemy.  They  are  to  abstain 
from  all  needless  severity,  as  well  as  from  all  perfidious,  unjust,  or 
tyrannical  acts. 

5.  Agreements  made  between  belligerents  during  the  continuance 
of  war,  such  as  armistices,  capitulatioHS,  and  the  like,  are  to  be 
scrupulously  observed  and  respected. 

6.  No  invaded  territory  is  to  be  regarded  as  conquered  until  the 
end  of  the  war.  Until  that  time  the  invader  exercises,  in  such  terri- 
tory, only  a  de  facto  power,  essentially  provisional  in  character. 


PART   SECOND 

Application  of  General  Principles 

I.  Hostilities 

(a.)  rules  of  conduct  with  regard  to  individuals 

(«.)  Inoffensive  Populations 
The  cojitest  being  carried  on  by  ''''  armed  forces  "  only 

7.  It  is  forbidden  to  deal  harshly  with  inoffensive  populations. 


APPENDIX   F  571 

{b.)  Means  of  Inpiring  the  Enemy 

8.  It  is  forbidden, 

{a.)  To  make  use  of  poison,  in  any  form  wliatever, 

{b)  To  make  treacherous  attempts  upon  the  life  of  an  enemy ;  as, 
for  example,  by  keeping  assassins  in  pay,  or  by  feigning  to  surrender. 

{c)  To  attack  an  enemy  by  concealing  the  distinctive  signs  of  an 
armed  force. 

{d)  To  use  improperly  the  national  flag,  uniform,  or  other  distinc- 
tive signs  of  the  enemy ;  the  flag  of  truce,  or  the  distinctive  signs  of 
the  Geneva  Convention. 

9.  It  is  forbidden, 

{a)  To  employ  arms,  projectiles,  or  materials  of  any  kind  calcu- 
lated to  cause  needless  suffering,  or  to  aggravate  wounds — notably 
projectiles  of  less  weight  than  four  hundred  grammes  (fourteen 
ounces  avoirdupois)  which  are  explosive  or  are  charged  with  ful- 
minating or  explosive  substances. 

{h.)  To  kill  or  injure  an  enemy  who  has  surrendered,  or  who  is 
disabled ;  or  to  declare  in  advance  that  quarter  will  not  be  given, 
even  by  those  who  do  not  ask  it  for  themselves. 

(^.)  The  Sick  and  Wounded,  and  the  Sa?iita/y  Service 

The  following  provisions,  extracted  from  the  Geneva  Convention, 
exempt  the  sick  and  wounded,  and  the  personnel  of  the  sanitary 
service,  from  many  of  the  needless  hardships  to  which  they  were 
formerly  exposed : 

10.  Wounded  or  sick  soldiers  shall  be  collected  together  and  cared 
for,  to  whatever  nation  they  may  belong. 

11.  Commanders-in-chief  shall  have  power  to  deliver,  immediately, 
to  the  outposts  of  the  enemy,  soldiers  who  have  been  wounded  in 
an  engagement,  when  circumstances  are  such  as  to  permit  this  to  be 
done,  and  with  the  consent  of  both  parties.  Those  who  are  recog- 
nized, after  their  wounds  are  healed,  as  incapable  of  serving,  shall  be 
sent  back  to  their  own  country.  The  others  may  also  be  sent  back, 
on  condition  of  not  again  bearing  arms  during  the  continuance  of 
the  war.  Evacuations,  together  with  the  persons  under  whose  direc- 
tion they  take  place,  shall  be  protected  by  an  absolute  neutrality. 

12.  Persons  employed  in  hospitals  and  ambulances,  composing 
the  staff  for  superintendence,  medical  service,  administration,  trans- 
port of  wounded,  as  well  as  the  chaplains,  and  the  duly  accredited 


572      THE  ELEMENTS  OF  INTERNATIONAL  LAW 

agents  of  relief  associations  who  are  authorized  to  assist  the  regular 
sanitary  staff,  shall  participate  in  the  benefit  of  neutrality  while  so 
employed,  and  so  long  as  there  remain  any  wounded  to  bring  in 
or  to  succor. 

13.  The  persons  designated  in  the  preceding  article  should,  even 
after  occupation  by  the  enemy,  continue  to  attend,  according  to 
their  needs,  the  sick  and  wounded  in  the  hospital,  or  ambulance,  to 
which  they  are  attached. 

14.  When  they  request  to  withdraw,  the  commander  of  the  occu- 
pying troops  shall  fix  the  time  of  departure,  which  he  shall  only  be 
allowed  to  delay,  for  a  short  time,  in  case  of  military  necessity. 

15.  Suitable  arrangements  should  be  made  to  assure  to  neutral- 
ized persons,  who  have  fallen  into  the  hands  of  the  enemy,  the  en- 
joyment of  suitable  salaries. 

16.  An  arm-badge  (brassard)  shall  be  worn  by  neutralized  indi- 
viduals, but  the  delivery  thereof  shall  be  regulated  by  military  au- 
thority. 

17.  The  commanding  generals  of  the  belligerent  powers  should 
appeal  to  the  humanity  of  the  inhabitants,  and  should  endeavor  to 
induce  them  to  assist  the  wounded,  by  pointing  out  to  them  the  ad- 
vantages that  will  result  from  so  doing.  They  should  regard  as  in- 
violable those  who  respond  to  this  appeal. 

(d.)   The  Dead 

18.  It  is  forbidden  to  rob  or  mutilate  the  bodies  of  the  dead  lying 
on  the  field  of  battle. 

19.  The  bodies  of  the  dead  should  not  be  buried  until  they  have 
been  carefully  examined,  and  all  articles  which  may  serve  to  fix 
their  identity,  such  as  names,  medals,  numbers,  pocket-books,  etc., 
shall  have  been  secured.  The  articles  thus  collected  from  the 
bodies  of  the  enemy's  dead  should  be  transmitted  to  their  army  or 
government. 

{e.)   Who  May  he  Made  P?isoners  of  War 

20.  Individuals  who  form  a  part  of  the  belligerent  armed  force 
of  a  state,  if  they  fall  into  the  hands  of  the  enemy,  are  to  be  treated 
as  prisoners  of  war,  in  conformity  with  Articles  61-78  of  these 
instructions.  The  same  rule  is  observed  in  the  case  of  messen- 
gers who  carry  official  despatches  openly;  and  towards  aeronauts 


APPENDIX    F  573 

charged  with  observing  the  operations  of  an  enemy,  or  with  the 
maintenance  of  communications  between  the  various  parts  of  an 
army  or  theatre  of  military  operations. 

2  1.  Individuals  who  accompany  an  army,  but  who  are  not  a  part 
of  the  regular  armed  force  of  the  state,  such  as  correspondents, 
traders,  sutlers,  etc.,  and  who  fall  into  the  hands  of  the  enemy,  may 
be  detained  for  such  length  of  time  only  as  is  warranted  by  strict 
military  necessity. 

(/)  spies 

22.  Spies  captured  in  the  act  cannot  demand  to  be  treated  as 
prisoners  of  war. 

23.  An  individual  may  not  be  regarded  as  a  spy,  however,  who, 
belonging  to  the  armed  force  of  either  belligerent,  penetrates,  with- 
out disguise,  into  the  zone  of  military  operations  of  the  enemy.  Nor 
does  the  term  apply  to  aeronauts  or  to  couriers  or  messengers  who 
carry  openly  and  without  concealment  the  official  despatches  of  the 
enemy. 

24.  No  person  charged  with  being  a  spy  shall  be  punished  for 
that  offence  until  the  fact  of  his  guilt  shall  have  been  established 
before  a  competent  military  tribunal. 

25.  A  spy  who  succeeds  in  quitting  the  territory  occupied  by  an 
enemy  incurs  no  penalty  for  his  previous  offence,  should  he  at  any 
future  time  fall  into  the  hands  of  that  enemy. 

(^.)  Flags  of  Truce 

26.  The  bearer  of  a  flag  of  truce  who,  with  proper  authority  from 
one  belligerent,  presents  himself  to  the  other  for  the  purpose  of  com- 
municating with  him,  is  entitled  to  complete  inviolability  of  person. 

27.  He  may  be  accompanied  by  a  drummer  or  trumpeter,  by  a 
color-bearer,  and,  if  need  be,  by  a  guide  and  interpreter,  all  of  whom 
shall  be  entitled  to  a  similar  inviolability  of  person. 

28.  The  commander  to  whom  a  flag  is  sent  is  not  obliged  to  re- 
ceive the  flag  under  all  circumstances. 

29.  The  commander  who  receives  a  flag  has  a  right  to  take  such 
precautionary  measures  as  will  prevent  his  cause  from  being  injured 
by  the  presence  of  an  enemy  within  his  lines. 

30.  If  the  bearer  of  a  flag  of  truce  abuse  the  trust  reposed  in  him, 
he  may  be  temporarily  detained,  and,  if  it  be  proven  that  he  has 


574  THE   ELEMENTS   OF    INTERNATIONAL   LAW 

taken  advantage  of  his  position  to  abet  a  treasonable  act,  he  forfeits 
his  character  of  inviolability. 

(b.)   rules   of   conduct   with   regard   to   things 

(a.)  Means  of  Ijijuring  the  Enemy. — Bombardments 

I     Certain  precautions  are  fnade  necessary  by  the  rule  that  a  belligerent 
must  abstain  from  useless  severity.     In  accordance  with  this  pririciple, 

31,  It  is  forbidden, 

(a.)  To  pillage,  even  places  taken  by  assault. 

(<5.)  To  destroy  public  or  private  property,  unless  such  destruction 
be  demanded  by  urgent  military  necessity. 

(<r.)  To  attack,  or  bombard,  open  or  undefended  towns. 

32.  The  commander  of  an  attacking  force,  save  in  cases  of  open 
assault,  shall,  before  undertaking  a  bombardment,  make  due  effort 
to  give  notice  of  his  intention  to  the  local  authorities. 

■i^Ty.  In  case  of  bombardment  all  needful  measures  shall  be  taken 
to  spare,  if  it  be  possible  to  do  so,  buildings  devoted  to  religion  and 
charity,  to  the  arts  and  sciences,  hospitals,  and  depots  of  sick  and 
wounded.  This  on  condition,  however,  that  such  places  be  not  made 
use  of,  directly  or  indirectly,  for  purposes  of  defence. 

34.  It  is  the  duty  of  the  besieged  to  designate  such  buildings  by 
suitable  marks  or  signs,  indicated,  in  advance,  to  the  besieger. 

{b?)  Sanitary  Establishmetits 

The  arrangements  for  the  relief  of  the  woiaided,  which  are  made  the 
subject  of  Article  10  et  seq.  of  the  Geneva  Convention.,  would  be  inade- 
quate to  their  purpose  were  not  sanitary  establishments  granted  equal 
protection.  Hetice,  in  accordance  with  the  rules  of  the  Gcjieva  Con- 
vention^ 

35.  Ambulances  and  military  hospitals  are  recognized  as  neutral, 
and,  as  such,  are  to  be  protected  by  belligerents,  so  long  as  any  sick 
or  wounded  remain  therein. 

36.  The  same  rule  applies  to  buildings,  or  parts  of  buildings,  in 
which  the  sick  or  wounded  are  gathered  together  or  cared  for. 

37.  The  neutrality  of  hospitals  and  ambulances  ceases  if  they 
are  guarded  by  a  military  force.  This  does  not  preclude  the  pres- 
ence of  an  adequate  police  force. 

38.  As  the  equipment  of  military  hospitals  remains  subject  to  the 


APPENDIX   F  575 

laws  of  war,  persons  attached  to  such  hospitals  cannot,  in  withdraw- 
ing, carry  away  any  articles  but  such  as  are  their  private  property. 
Under  the  same  circumstances,  an  ambulance  shall,  on  the  contrary, 
retain  its  equipment. 

39.  Under  the  circumstances  foreseen  in  the  above  paragraphs, 
the  term  ambulance  is  applied  to  field  hospitals  and  other  temporary 
establishments  which  follow  the  troops  on  the  field  of  battle  to  re- 
ceive the  sick  and  wounded. 

40.  A  distinctive  and  uniform  flag  is  adopted  for  ambulances, 
hospitals,  and  evacuations.  It  bears  a  red  cross  on  a  white  ground. 
It  must,  on  all  occasions,  be  accompanied  by  the  national  flag. 

II.  Occupied  Territory 
(a.)  definition 

41.  Territory  is  regarded  as  occupied  when,  as  the  consequence 
of  its  invasion  by  the  enemy's  forces,  the  state  from  which  it  has 
been  taken  has  ceased,  in  fact,  to  exercise  there  its  regular  au- 
thority, and  the  invading  state  alone  finds  itself  able  to  maintain 
order  therein.  The  limits  within  which  this  state  of  affairs  exists 
determine  the  extent  and  duration  of  the  occupation, 

(b.)  rules  of  conduct  with  respect  to  persons 

42.  It  is  the  duty  of  the  occupying  military  authority  to  inform  the 
inhabitants,  at  the  earliest  practicable  moment,  of  the  powers  that  he 
exercises,  as  well  as  to  define  the  limits  of  the  occupied  territory. 

43.  The  occupying  authority  should  take  all  due  and  needful 
measures  to  assure  order  and  public  tranquillity. 

44.  To  that  end  the  invader  should  maintain  the  laws  in  force  in 
the  territory  in  time  of  peace,  and  should  not  modify,  suspend,  or 
replace  them,  unless  it  becomes  absolutely  necessary  to  do  so. 

45.  The  administrative  officials  and  civil  employees  of  every 
grade  who  consent  to  continue  in  the  performance  of  their  duties 
should  be  supported  and  protected  by  the  occupying  authority.  Their 
appointments  are  always  revocable,  and  they  have  the  right  to  resign 
their  places  at  any  time.  They  should  be  subjected  to  penalties 
only  when  they  fail  to  perform  duties  freely  accepted  by  them,  and 
should  be  given  over  to  justice  only  when  they  have  betrayed  them. 


t^'j^)  THE  ELEMENTS  OF  INTERNATIONAL  LAW 

46.  In  case  of  urgency,  the  invader  may  demand  the  co-operation 
of  the  inhabitants,  to  enable  him  to  provide  for  the  necessities  of 
local  administration. 

47.  The  population  of  an  invaded  district  cannot  be  compelled 
to  swear  allegiance  to  the  hostile  power;  but  individuals  who  com- 
mit acts  of  hostility  against  the  occupying  authority  are  punish- 
able. 

48.  The  inhabitants  of  an  occupied  territory  who  do  not  submit 
to  the  orders  of  the  occupying  authority  may  be  compelled  to  do  so. 
The  invader,  however,  cannot  compel  the  inhabitants  to  assist  him 
in  his  works  of  attack  or  defence,  or  to  take  part  in  military  opera- 
tions against  their  own  country. 

49.  Family  honor  and  rights,  the  lives  of  individuals,  as  well  as 
their  religious  convictions,  and  the  right  of  religious  worship  should 
be  respected. 

(C.)    RULES    OF    CONDUCT   WITH    REGARD    TO    PROPERTY 

(a.)  Public  Property 

Although  the  authority  of  the  itivader  replaces  tJiat  of  the  governme?it 
of  the  occupied  territory,  his  power  is  not  absolute.  So  long  as  the  fate 
of  the  territory  remai?is  in  suspense — that  is,  uJitil  the  peace — the  in- 
vader is  not  free  to  dispose  of  property  7vhich  still  belongs  to  the  enemy, 
and  which  is  not  of  direct  use  to  him  in  his  military  operations.  From, 
these  principles  the  following  rides  are  deduced: 

50.  The  occupying  authority  may  seize  only  the  cash,  public 
funds,  and  bills  due  or  transferable,  belonging  to  the  state  in  its 
own  right,  depots  of  arms  and  supplies,  and,  in  general,  the  mov- 
able property  of  the  state,  of  such  character  as  to  be  useful  in  mili- 
tary operations. 

51.  Means  of  transportation  (railways,  boats,  etc.),  as  well  as  tele- 
graph lines  and  landing-cables,  can  only  be  appropriated  to  the  use 
of  the  invader.  Their  destruction  is  forbidden,  unless  it  be  de- 
manded by  military  necessity.  They  are  to  be  restored,  at  the 
peace,  in  the  condition  in  which  they  are  at  that  time. 

52.  The  invader  can  only  act  in  the  capacity  of  a  provisional  ad- 
ministrator in  respect  to  real  property,  such  as  buildings,  forests, 
agricultural  establishments,  etc.,  belonging  to  the  enemy's  state. 
He  should  protect  these  properties  and  see  to  their  maintenance. 


APPENDIX   F  577 

53.  The  property  of  communes,  and  that  of  establishments  de- 
voted to  religious  worship,  and  to  the  arts  and  sciences,  cannot  be 
seized.  All  destruction,  or  intentional  defacement,  of  such  estab- 
lishments, of  historic  monuments  or  archives,  or  of  works  of  science 
or  art,  is  formally  prohibited,  save  when  demanded  by  urgent  mili- 
tary necessity. 

(d.)  Private  Property 

If  the  powers  of  the  invader  are  limited  with  respect  to  the  public 
property  of  the  enemy's  state,  with  greater  reason  are  they  limited  with 
respect  to  the  private  property  of  individuals. 

54.  Private  property,  whether  belonging  to  individuals  or  corpora- 
tions, is  to  be  respected,  and  can  be  confiscated  only  under  the 
limitations  contained  in  the  following  articles: 

55.  Means  of  transportation  (railways,  boats,  etc.),  telegraphs, 
factories  of  arms  and  munitions  of  war,  although  belonging  to  private 
individuals  or  corporations,  may  be  seized  by  an  invader,  but  must 
be  restored  at  peace ;  if  possible,  with  suitable  indemnities. 

56.  Impositions  in  kind  (requisitions)  levied  upon  communes  or 
the  residents  of  invaded  districts  should  bear  direct  relation  to  the 
generally  recognized  necessities  of  war,  and  should  be  in  proportion 
to  the  resources  of  the  district.  Requisitions  can  only  be  made,  or 
levied,  with  the  authority  of  the  commanding  officer  of  the  occupied 
district. 

57.  The  invader  may  levy,  in  the  way  of  dues  and  imposts,  only 
such  as  are  already  established  for  the  benefit  of  the  state  revenues. 
He  employs  them  to  defray  the  expenses  of  administration  of  the 
occupied  territory,  contributing  in  the  same  proportion  in  which  the 
legal  government  was  bound. 

58.  The  invader  cannot  levy  extraordinary  contributions  of  money, 
save  as  an  equivalent  for  fines,  or  imposts  not  paid,  or  for  payments 
not  made  in  kind.  Contributions  in  money  can  only  be  imposed  by 
the  order,  and  upon  the  responsibility,  of  the  general-in-chief,  or  that 
of  the  superior  civil  authority  established  in  the  occupied  territory ; 
and  then,  as  nearly  as  possible,  in  accordance  with  the  rule  of  ap- 
portionment and  assessment  of  existing  imposts. 

59.  In  the  apportionment  of  burdens  relating  to  the  quartering  of 
troops,  and  in  the  levying  of  requisitions  and  contributions  of  war, 
account  is  to  be  made  of  the  charitable  zeal  displayed  by  the  inhabi- 
tants in  behalf  of  the  wounded. 

37 


578  THE   ELEMENTS   OF   INTERNATIONAL   LAW 

60.  Impositions  in  kind,  when  they  are  not  paid  for  in  cash,  and 
contributions  of  war,  are  authenticated  by  receipts.  Measures 
should  be  taken  to  assure  the  regularity  and  bona  fide  character  of 
these  receipts. 

III.  Prisoners  of  War 

The  cofifinement  of  prisoners  of  war  is  ?iot  in  the  nature  of  a  penalty 
for  crime;  neither  is  it  an  act  of  vengeance.  It  is  a  temporary  deten- 
tion only,  entirely  without  penal  character.  In  the  following  provisions, 
therefore,  regard  has  been  had  to  the  consideration  due  them  as  prisoners, 
and  to  the  necessity  of  their  secure  detention. 

61.  Prisoners  of  war  are  the  prisoners  of  the  captor's  government, 
and  not  of  the  individuals  or  corps  who  captured  them. 

62.  They  are  subject  to  the  laws  and  regulations  in  force  in  the 
army  of  the  enemy. 

63.  They  must  be  treated  with  humanity. 

64.  All  articles  in  their  personal  possession,  arms  excepted,  re- 
main their  private  property. 

65.  Every  prisoner  of  war  is  obliged  to  disclose,  when  duly  inter- 
rogated upon  the  subject,  his  true  name  and  grade.  Should  he  fail 
to  do  so,  he  may  be  deprived  of  all,  or  a  part,  of  the  privileges  ac- 
corded to  prisoners  of  his  rank  and  station. 

66.  Prisoners  of  war  may  be  confined  in  towns,  fortresses,  camps, 
or  other  places,  with  an  obligation  not  to  go  beyond  certain  specific 
limits ;  but  they  may  only  be  imprisoned  as  an  indispensable  meas- 
ure of  security. 

67.  Every  act  of  insubordination  on  the  part  of  a  prisoner  of  war 
authorizes  the  resort  to  suitable  measures  of  severity  on  the  part  of 
the  government  in  whose  hands  he  is. 

68.  Prisoners  of  war  attempting  to  escape  may,  after  having  been 
summoned  to  halt  or  surrender,  be  fired  upon.  If  an  escaped 
prisoner  be  recaptured  before  being  able  to  rejoin  his  own  army  or 
to  quit  the  territory  of  his  captor,  he  is  only  liable  to  disciplinary 
penalties ;  or  he  may  be  subjected  to  a  more  rigorous  confinement. 
If,  after  having  successfully  effected  his  escape,  he  is  again  made  a 
prisoner,  he  incurs  no  penalty  for  his  previous  escape.  If,  however, 
the  prisoner  so  recaptured,  or  retaken,  has  given  his  parole  not  to 
attempt  to  escape,  he  may  be  deprived  of  his  rights  as  a  prisoner  of 
war. 


APPENDIX    F 


579 


69.  The  government  having  prisoners  of  war  in  its  hands  is 
obliged  to  support  them.  If  there  be  no  agreement  between  the 
belligerents  upon  this  point,  prisoners  of  war  are  placed,  in  all 
matters  regarding  food  and  clothing,  upon  the  peace  footing  of  the 
troops  of  the  state  which  holds  them  in  captivity. 

70.  Prisoners  cannot  be  compelled  to  take  any  part  whatsoever  in 
operations  of  war.  Neither  can  they  be  compelled  to  give  informa- 
tion concerning  their  army  or  country. 

71.  They  may  be  employed  upon  public  works  that  have  no  direct 
connection  with  the  captor's  military  operations  ;  provided,  however, 
that  such  labor  is  not>detrimental  to  health,  nor  humiliating  to  their 
military  rank,  if  they  belong  to  the  army,  or  to  their  official  or 
social  position,  if  they  are  civilians,  not  connected  with  any  branch 
of  the  military  service. 

72.  In  the  event  of  their  being  authorized  to  engage  in  private 
industries,  their  pay  for  such  services  may  be  collected  by  the  au- 
thority in  charge  of  them.  The  sums  so  received  may  be  employed 
in  bettering  their  condition,  or  may  be  paid  to  them,  at  their  release, 
subject  to  deduction,  if  that  course  be  deemed  expedient,  of  the  ex- 
pense of  their  maintenance. 

IV.  Termination  of  Captivity 

The  right  of  detaining  individuals  in  captivity  exists  only  during  the 
continuance  of  hostilities.     Hence  : 

73.  The  captivity  of  prisoners  of  war  ceases,  as  a  matter  of  right, 
at  the  conclusion  of  peace ;  but  their  liberation  is  then  regulated  by 
agreement  between  the  belligerents, 

74.  Captivity  also  ceases,  in  so  far  as  sick  or  wounded  prisoners 
are  concerned,  so  soon  as  they  are  found  to  be  unfit  for  military 
service.  It  is  the  duty  of  the  captor,  under  such  circumstances,  to 
send  them  back  to  their  country. 

75.  During  the  continuance  of  hostilities,  prisoners  of  war  may  be 
released  in  accordance  with  cartels  of  exchange,  agreed  upon  by  the 
belligerents. 

76.  Without  formal  exchange,  prisoners  may  be  liberated  on 
parole,  provided  they  are  not  forbidden  by  their  own  government 
to  give  paroles.  In  such  a  case  they  are  obliged,  as  a  matter  of 
military  honor,  to  perform  with  scrupulous  exactness   the  engage- 


58o  THE    ELEMENTS    OF   INTERNATIONAL   LAW 

ments  which  they  have  freely  undertaken,  and  which  should  be 
clearly  specified.  On  its  part,  their  own  government  should  not  de- 
mand or  accept  from  them  any  service  contrary  to,  or  inconsistent 
with,  their  plighted  word. 

77.  A  prisoner  of  war  cannot  be  constrained  to  accept  a  release 
on  parole.  For  a  similar  reason,  the  enemy's  government  is  not 
obliged  to  accede  to  the  demand  of  a  prisoner  of  war  to  be  released 
on  parole. 

78.  Every  prisoner  of  war  liberated  on  parole  who  is  recaptured 
in  arms  against  the  government  to  which  he  has  given  such  parole 
may  be  deprived  of  his  rights  and  privileges  as  a  prisoner  of  war; 
unless  since  his  liberation  he  has  been  included  in  an  unconditional 
exchange  of  prisoners. 

V.  Troops  Interned  in  Neutral  Territory 

//  is  imiversally  admitted  that  a  7ieictral  state  cannot,  without  com- 
pi'omising  its  neutrality,  lend  aid  to  either  belligerent,  or  permit  them 
to  make  use  of  its  territory.  On  the  other  hand,  considerations  of  hii- 
manity  dictate  that  asylum  should  not  be  refused  to  individuals  who 
take  refuge  in  neutral  territory  to  escape  death  or  captivity.  From  these 
principles  the  following  provisions  are  deduced.  They  are  calculated  to 
reconcile,  to  some  extent,  the  opposing  interests  involved. 

79.  It  is  the  duty  of  a  neutral  state  within  whose  territory  com- 
mands or  individuals  have  taken  refuge  to  intern  them  at  points  as 
far  removed  as  possible  from  the  theatre  of  war.  It  should  pursue 
a  similar  course  towards  those  who  make  use  of  its  territory  for  war- 
like operations  or  to  render  military  aid  to  either  belligerent. 

80.  Interned  troops  may  be  guarded  in  camps  or  fortified  places. 
The  neutral  state  decides  whether  officers  are  to  be  released  on 
parole  by  taking  an  engagement  not  to  quit  neutral  territory  with- 
out authority. 

81.  In  the  event  of  there  being  no  agreement  with  the  belliger- 
ents concerning  the  maintenance  of  interned  troops,  the  neutral 
state  shall  supply  them  with  food  and  clothing,  and  the  immediate 
aid  demanded  by  humanity.  It  also  takes  such  steps  as  it  deems 
necessary  to  care  for  the  arms  and  other  public  property  brought 
into  its  territory  by  the  interned  troops,  When  peace  has  been  con- 
cluded, or  sooner  if  possible,  the  expenses  occasioned  by  the  intern- 


APPENDIX   F  581 

ment  are  reimbursed  to  the  neutral  state  by  the  belligerent  state  to 
whom  the  interned  troops  belong. 

82.  The  provisions  of  the  Geneva  Convention  of  August  22,  1864 
(Articles  10-18,  35-40,  59  and  74  above  given),  are  applicable  to 
the  sanitary  staff,  as  well  as  to  the  sick  and  wounded,  who  take 
refuge  in,  or  are  conveyed  to,  neutral  territory. 

83.  Evacuations  of  sick  and  wounded  not  prisoners  of  war  may 
pass  through  neutral  territory,  provided  the  personnel  and  material 
accompanying  them  are  exclusively  sanitary.  It  is  the  duty  of  the 
neutral  state  through  whose  territory  the  evacuation  is  made  to  take 
such  measures  of  safety  and  necessary  control  as  it  may  deem  neces- 
sary to  the  rigorous  performance  of  its  neutral  duty. 

PART  THIRD 

Penal  Sanction 

If  any  of  the  foregoing  rules  be  violated,  the  offending  parties  should 
be  punished,  after  a  judicial  hearing,  by  the  belligerent  in  whose  hands 
they  are. 

84.  Offenders  against  the  laws  of  war  are  liable  to  the  punish- 
ments specified  in  the  penal,  or  criminal,  law. 

This  mode  of  repression,  however,  is  only  applicable  when  the  person 
of  the  offender  can  be  secured.  In  the  contrary  case,  the  criminal  law 
is  poiverless,  and,  if  the  injured  party  deem  the  misdeed  so  serious  in 
character  as  to  make  it  necessary  to  recall  the  eneniy  to  a  respect  for 
law,  no  other  resource  remains  than  a  resort  to  reprisals.  Reprisals 
are  an  exception  to  the  general  rule  of  equity,  that  an  innocent  person 
ought  not  to  suffer  for  the  guilty.  They  are  also  at  variance  with  the 
rule  that  each  belligerent  should  conform  to  the  rules  of  war,  without 
reciprocity  on  the  part  of  the  enemy.  This  necessary  rigor,  however^  is 
modified  to  some  extetit  by  the  follotving  restrictions : 

85.  Reprisals  are  formally  prohibited  in  all  cases  in  which  the 
injury  complained  of  has  been  repaired. 

86.  In  all  cases  of  serious  importance  in  which  reprisals  appear 
to  be  absolutely  necessary,  they  shall  not  exceed,  in  kind  or  degree, 
nor  in  their  mode  of  application,  the  exact  violation  of  the  law  of 
war  committed  by  the  enemy.  They  can  only  be  resorted  to  with 
the  express  authority  of  the  general-in-chief.  They  must  conform, 
in  all  cases,  to  the  laws  of  humanity  and  morality. 


INDEX 


\bsolute  government,  33. 
Accession  {see  Treaties),  235,  236. 
Accretion  {see  Territory),  66. 
Acquisition  of  sovereignty,  41,  42. 
Acquisition  of  territory,  66,  67. 

Accretion,  66. 

Conquest,  67. 

Occupation,  66. 

Treaty,  66,  67. 
Adjustment  of  internationaldisputes, 
250-276,  540-551. 

Amicable  settlement,  250-253. 

Arbitration,  255-263. 

Compulsory,  258-263,  540-551. 

Diplomatic  adjustment,  250-254. 

Embargo,  266,  267. 

Forcible  measures,  263-270. 

International    arbitration,    258- 

263,  540-551- 

Pacific  blockade,  267-270,  477. 

Procedure,  250. 

Reprisals,  264,265. 

Retorsion,  263,  264. 
Agreements,  see  Treaties. 
Alabama,   case    of    the,   411-415    {see 

Geneva  Arbitration). 
Aliens,  151-165. 

Asylum  to,  118,  119. 

Definition,  151. 

Disabilities  of,  152-156. 

Domicile,  156-165. 

Domiciled  strangers,  151,  152. 

Droit  d'aubaine,  152. 

Droit  de  retraction,  152. 

Exclusion  of,  118,  119. 

Exemptions,  153-156. 

History  of  relation,  152-156. 

Military  service,  154. 

Rights  of,  152-156. 

Treatment  of,  152-156. 
Allegiance  {see  Citizenship),  135-151. 

Acquisition,  138,  139. 


Citizenship,  135-151. 
Distinguishedfrom  domicile,  136- 

138,  157. 
Expatriation,  effect  on,  143-151. 
Forfeiture  of,  139,  143-151. 
Indelible,  144. 
Loss  of,  138,  139,  143-151- 
Naturalization,    effect    on,    139- 

143- 
Oath  of,  142. 
Renunciation  of,   138,   139,    143- 

151. 

Alliances  {see  Treaties),  241-243. 
Classification,  242. 
Definition,  242. 
Equal,  242. 
Forms  of,  242,  243. 
Offensive,  242. 
Treaties  respecting,  241-243. 
Unequal,  242. 
Alternate,  use  of  the,  234. 
Ambassadors  {see  Ministers),  87,  88^ 
igo-2ii. 
Asylum  in  hotel,  210,  211. 
Attaches,  201,  210,  211. 
Cases  against,  where  triable,  207, 

208. 
Ceremonial,  129-131. 
Civil    jurisdiction,    immunity 

from,  205. 
Classification  of,  193,  194. 
Credence,  letters  of,  195,  196. 
Criminal  jurisdiction,  immunity 

from,  202-205. 
Customs  dues,  exemption  from, 

209,  210. 
Duties,  197. 
Envoys,  193,  195. 
Exterritoriality,  87,  88,  200-210. 
Honors  to,  129-134. 
Immunities,  87,  88,  199-210. 
Legates,  195. 


584 


INDEX 


Military  attaches,  210,  211. 
Ministers  resident,  194,  195. 
Naval  attaches,  210,  211. 
Nuncios,  195. 
Origin,  190,  191. 
Privileges,  199-210. 
Rank,  194,  195. 
Reception  of,  196. 
Religious  worship,  208,  2og. 
Representative    character,     194, 

195- 
Right  of  sending  and  receiving, 

191,  192. 
Salutes  to,  129-131. 
Sending,  manner  of,  195,  196. 
Suspension  of  functions,  198. 
Termination  of  mission,  198,  199. 
Titles,  195. 

Visits  of  ceremony,  130-134. 
Ambulances,  see  Geneva  Convention. 
Interpretation  of  term,  531. 
Neutralization  of,   in   war,    529- 

533- 
American  instructions  for  the  govern- 
ment of  armies,  499-525. 
Amicable    adjustment    of    disputes, 
250-263,  540-551- 
Arbitration,   conventional,     258- 
263,  540-551- 

Private,  255-258. 
Commissions  of  inquiry,  259,  260, 

542,  543- 
Diplomatic  adjustment,  250-254. 
Good  offices,  255,  259,  541,  542. 
Mediation,  255,  259,  541,  542. 
Moderation,  duty  of,  255. 
Permanent  arbitral  tribunal,  260- 

263,  540-551- 
Procedure,  253-255,  547-550. 
Anderson,  John,  case  of,  70,  note. 
Angary,  right  of,  436,  437. 
Anniversaries,  observance  of,  133. 
Antwerp,  laws  of  {see  Sea  Laws),  9. 
Approach  to  verify  nationality,  488. 
Arbitral  judgments  as  sources  of  in- 
ternational law,  24,  25. 
Arbitration,  international, treaty  reg- 
ulating, 258-263,  540-551. 

Agreement  as  to,  258.     {See  Ap- 
pendix E,  540-551.) 
Binding  force  of  judgment,  261, 

549- 
Composition    of    tribunal,    260- 

262,  547,  548. 
Counsel,  261,  547,  551. 
Decision,  261,  262,  549. 


Evidence,  261,  262. 

Good  offices,  259,  541,  542. 

Inquiry,    international    commis- 
sion  of,  259,  260,  542,  543. 

Judgment,  261,  262,  549. 

Mediation,  257,  260,  541,  542. 

Parties,  262,  note. 

Permanent  court,  260-262. 

Power  of  court,  261,  262. 

Preliminary  treaty,  260,  261. 

Procedure,  261. 

Reservation  of  the  United  States, 
262,  263.     « 

Signatory  parties,  262,  note. 

Umpire,  261. 
Arbitration   at  Geneva,  see    Geneva 

Arbitration. 
Arbitration      Convention      of     The 
Hague,  540-551. 

Accessions  to,  550,  551. 

Arbitral  justice,  541. 

Good  offices,  541,  542. 

Judgment  of  tribunal,  549. 

Mediation,  541,  542. 

Membership,  547,  548. 

Organization,  547,  548. 

Permanent  court,  544,  551. 

Procedure,  547-551- 

Review  of  judgment,  549,  550. 

Umpire,  selection  of,  545. 
Aristocracies,  33. 
Arm-badge  (j-^-^  Geneva  Convention), 

530. 
Armaments,  diminution  of,    recom 
mendation   of  Conference   at  The 
Hague,  566. 
Armed  neutrality,  394,  395. 
Armies  in  transit,  see  Exterritoriality. 

Disfavored  in  practice,  84. 

Exemption   from   local  jurisdic- 
tion, 83,  84. 

Exterritoriality  of,  83-85. 

Government  of,  84. 

Injuries  by,  84,  85. 

Offences  in, 84,  85. 

Permission  for  transit,  83. 

Supply  of,  85. 
Armistice  {see  Truces),  339-341,  521- 
523- 

General,  339-341- 

Special,  339-341. 
Arms  forbidden  in  war,  298,  299. 
Art,  protection  of  works  of,  in  war, 

306,  507,  559. 
Artillery,    recommendation    of    The 
Hague  Conference,  566. 


INDEX 


58S 


Assassination  prohibited  in  war,  523. 
Asylum,  118-122,  422,  423. 

Admission  of  aliens,  118,  119. 

Aliens,  treatment  of,  118,  119. 

Creole,  case  of  the,  120,  121. 

Extent  of  right,  118,  119. 

Legationary,  209,  210. 

Alalia  Luz,  case  of  the,  121,  122. 

Political  refugees,  119. 

Public  armed  vessels,  82. 

Shipwrecked  sailors,  120. 

Troops,  423,  424. 

Vessels  in  distress,  120. 

War  right,  422,  423. 
Attaches,  see  Ministers. 

Duties,  210,  211. 

Military,  210,  211. 

Naval,  210,  211. 
Attack  of  places,  301-303,  566. 

Duty  of  commanders,  302,  303. 

Notice  of  bombardment,  301,  302. 

Surrender,  303,  304. 
Aubaine,  Droit  d',  152. 
Augmentation  of  force  {see  Neutral- 
ity), 407,  408. 
Authors  {see  Text  Writers),  26,  27, 

Agreement  among,  26,  27. 

Classification  of,  26. 

Opinions  of,  26,  27. 

Unanimity  of  views  among,  26, 
27. 

Balance  of  power,  see  Interference. 

De  Martens'  statement  of  princi- 
ple, 106,  107. 

Definition  of,  104. 

Extent  of  application,  106,  106. 

History,  104-106. 

Intervention  in   behalf  of,   104- 
108. 

Limitations  on,  106-108. 

Origin  of  principle,  104,  105. 

Senior's  statement  of  principle, 
107,  108. 

Vattel's  statement  of  principle, 
107. 
Balloons,  299. 

Employes  not  spies,  299. 

Use  of,  in  war,  299. 
Baltimore,  case  of  the,  80-82. 
Bar-shot  prohibited  in  war,  299. 
Belligerency,  275-279. 

Recognition  of,  276-278. 
Belligerent  right  of  search,  478-497. 
Belligerents  {see  War),  275,  276. 

Intercourse  of,  in  war,  336-339. 


Neutrals,  276. 
Recognition,  276-279. 
Bibliography  of    international    law, 

30- 
Blockade,  467-478. 

Breach  of,  472-474. 
Construction,  470,  471. 
De  facto,  470-472. 
Declaration  of  Paris,  rule  of,  470. 
Definition,  439,  440,  468. 
Duration  of  penalty,  474,  475. 
Egress,  breach  of,  by,  472-474. 
Endorsement  of,  471. 
Establishment  of,  470-474. 
Ingress,  breach  of,  by,  472-474. 
Innocent  entrance  and  exit,  473, 

474. 
Notification  of,  470-474. 
Pacific,  267-270. 
Paper,  470,  note,  471. 
Penalty  for  violation  of,  472-475. 
Proclamation  of,  471-472. 
Public  armed  vessels,  472,  473. 
Raising  of,  476-478. 
Restriction  on  neutral  commerce, 

439,  440,  468. 
Right  to  establish,  435,  440,  468. 
Termination,  476-478. 
Validity  of,  470-473. 
Violation    of,    how    committed, 

472-474. 
Warning  to   neutral  ships,  471- 

474- 
Boarding-party  {see  Search),  481,  482. 
Visits,  in  peace  {see  Ceremonial), 
130. 
Bombardment    of   sea -coast  towns, 
recommendation  of  Conference  at 
The  Hague  respecting,  566. 
Bombardment  of  undefended  towns, 

301,  302. 
Booty  {see  Captured  Property),  510. 
Boundaries,    see    States ;    Territory, 
44-54. 

Artificial,  44. 
Bays,  45. 
Coast  line,  45. 
Definition,  44. 
Establishment,  44, 
Gulfs,  45. 

Marine  league,  54-56. 
Natural,  44. 

Navigable  rivers  as,  46-54. 
Oceans,  45. 
Rivers,  46,  47. 
Seas,  45. 


586 


INDEX 


Straits,  59,  60. 
Water,  44,  45. 
Bounty  {see  Head  Money),  373. 
Brassard    (see   Geneva   Convention), 

530. 
Bullets,    explosive,   prohibited,    298, 
299.  538,  539.  566. 

Declaration    of    St.    Petersburg 
concerning,  538,  539. 
The  Hague,  566. 
Bureau  of  information  as  to  prison- 
ers of  war,  553. 

Cables,  submarine,  regulation  of,  by 

treaty,  64. 
Canals  {see  Ship  Canals),  62,  64. 
Canon  law  {see  Roman  Church),  13. 
Capitulations,  241,  339,  521,  522. 

Character,  339. 

Parties,  339. 

Purpose,  339. 
Captured     property    on    land,     310, 

311- 
Booty,  310,  311. 
Title  to,  310,  311. 
Captures,  357-375- 

Authority  for,  358-361. 

Booty,  510. 

By  whom  made,  360. 

Crews  of  captured  vessels,  363. 

Domicile  of  owners,  373-375. 

Duty  of  captor,  362,  363. 

Exemptions   from   capture,   374, 

375- 
How  effected,  361,  362. 
Legality    of,    how    determined, 

3697375- 
Locality  of,  360,  361. 
Nationality  of  owners,  373-375. 

Ships,  373-375- 
Neutral  waters,  360,  361. 
Postliminy,  366-369. 
Prisoners  of  war,  363. 
Prize,  361-363. 

Courts,  369-375- 
Crews,  362,  363. 
Ransom,  363-369. 
Recapture,  303-309. 
Right  of,  358,  359. 
Salvage,  367,  368. 
Title   to,    in  whom   vested,  361, 

362,  369,  370. 
Validity    of,     how    determined, 

369-375- 
When  complete,  361,  362, 
Where  made,  360,  361, 


Caroline,  case  of  the,.loi,  io2. 
Cartels,  241,  316,  317,  339. 
Construction,  316. 
Parties,  339. 
Purpose,  316,  339. 
Ships,  317. 
Caste,  distinction  of,  not  recognized, 

186. 
Causes  of  war,  272,  273. 

Moral    considerations    involved, 

273,  274- 
Responsibility  for,  273. 
Ceremonial: 

Ambassadors,  129-134. 

Anniversaries,  national,  133. 

Consuls,  129-134. 

Diplomatic  officers,  129-134. 

Maritime,  128-131. 

Military,  124-134. 

Origin    and   extent   of   practice, 

124-126. 
Salutes,  129,  130,  132-134. 
Visits,  130-134. 
Certificates  of  origin  {see  Passports), 

163,  164. 
Charges    d'Affaires   {see     Ministers), 

190-211. 
Chain-shot,  299. 
Chesapeake,  case  of  the,  427. 
Chivalry,  institution  of,  12,  13. 

Influence  on  international  law, 
12,  13- 
Christianity,  influence  of,  on    inter- 
national law,  13-16. 
Christina,  Queen  of  Sweden,  case  of, 

86,  note. 
Church,  influence    on    international 
law,  13,  14. 
Canon  law,  13. 
Ecumenical  councils,  13,  14. 
Relations    of,    to   Holy    Roman 

Empire,  14,  15. 
Papacy, 13-15. 
Churches,  protection  of,  in  war,  507. 
Civil  jurisdiction,  exemptions  from, 

199-210. 
Civil    status    of    individuals    deter- 
mined by  domicile,  136-138. 
Civil  war  {see  War),  274,  523. 
Citizens  : 

Allegiance,  135,  136. 
Civil  status,  136-138. 
Classification,  138. 
Definition,  135,  136. 
Domicile,  136-138. 
Duties,  32,  136-138. 


INDEX 


587 


Expatriation,  143-151. 
Extra-territorial  protection,  136. 
Heinrichs,  case  of,  147,  148. 
Koszta,  case  of,  148-150. 
Largomarsini,  case  of,  150. 
Legal  status  of,  136-138. 
Native-born,  138. 
Naturalized,  138-151. 
Participation  of,  in  government, 

31,  32,  136. 
Political  status,  136-138. 
Privileges,  135,  138. 
Suffrage,  31,  32,  136. 
Synonymous  with  subject,    135, 

136. 
Ungar,  case  of,  151. 
Citizenship,  135-151. 

Acquisition,  135,  139-142. 
Birth,  138,  139. 
Children,  139. 
Classification,  138. 
Definition,  135,  136. 
Distinguished     from     domicile, 

136-138,  157. 
Expatriation,  143-151. 
Forfeiture,  139,  143-151. 
How  determined,  137,  157. 
Loss  of,  139,  143,  151. 
Native  born,  138. 
Nativity,  138,  139. 
Naturalized  citizens,  139-151. 
Passports,  163,  164. 
Persons  included,  135,  136. 
Proof  of,  137,  143-151,  157- 
Renunciation  of,  139,  143-151. 
Subjects,  135,  136. 
Claims  of  subjects  for  injuries   re- 
ceived abroad : 

Based  on  mob  violence,  351,  352. 
Based  on  war,  350-354. 
Damages,    when   awarded,   351- 

353- 
Diplomatic    presentation,     250- 

254- 
Duty  of  a  state  respecting,  350- 

354- 
Local  tribunals,  resort  to,  96,  97. 
Method  of  presentation,  250-254. 
Mob  violence,  353,  354. 
Procedure,  250-254. 
War,  claims  based  on,  350-354. 
Claims  to  exclusive  dominion  on  high 

seas,  57,  58. 
Classification  of  international  law,  27- 
29. 

Basis,  27,  28. 


Conventional,  29. 

Customary,  29. 

Natural,  28. 

Positive,  28. 
Classification  of  wars : 

Civil,  274. 

Conquest,  274. 

Defensive,  274. 

External,  274. 

Independence,  274. 

Insurrection,  274. 

Internal,  274. 

Offensive,  274. 

Opinion,  274.     ' 

Rebellion,  274. 

Subjugation,  274. 
Closed  seas,  58,  59. 
Coast  fisheries,  60. 
Codes  of  maritime  law  {see  Sea  Laws), 

8-10. 
Codification  of  international  law,  30. 
Codification  of  rules  and  usages  of 
war : 

American  instructions,  525. 

Convention  of  The  Hague,  551. 

Institute   of  International  Law, 

569- 
Collecting  penalties,  324,  325. 

How  imposed,  324,  325. 

Purpose,  324,  325. 

Restriction  on,  325. 
Combatants,  312. 
Comity,  92,  122. 

Conflict  of  laws,  based  on,  181- 
188. 

Duties,  92. 

Exterritoriality,  based  on,  74~89. 

Extradition  by,  167. 

Moral  claims,  92. 
Commerce,  influence  of,  on  interna- 
tional law,  8-10. 

Revival  of,  8-10. 

Sea  laws,  8-10. 
Commercial  intercourse,  122-124. 

How  far  a  right,  123,  124. 

Not  compellable,  123,  124. 

Regulation  of,  123,  124. 

Restrictions  on,  123,  124. 
Communities,  collective  responsibil- 
ity of,  in  war,  324,  325. 

Offences,  324. 

Punishment,  324,  325. 

Responsibility,  324,  325. 
Compulsory     arbitration,     258-263  ; 

540-551- 
Concert  of  Europe,  108,  109. 


5! 


INDEX 


Confederations  : 

Constitution,  37,  38. 

Formation,  38. 

Rule   for   determining    strength 
of,  38. 

Strong,  37,  38. 

Unions,  37,  38. 

Weak,  37,  38. 
Conferences  {see  Congresses),  230,  231. 
Conflict  of  international  rights,  250- 
270. 

Adjustment  of,  250-263. 

Amicable  settlement,  250-253. 

Arbitration,  255-263. 

Diplomatic  adjustment,  250-254. 

Embargo,  266,  267. 

Forcible  measures,  263-270. 

Good  offices,  255-259. 

International    arbitration,    258- 
263. 

Mediation,  255,  259,  260. 

Moderation,  duty  of,  253,  254. 

Pacific  blockade,  267-270. 

Reprisals,  264,  265. 

Retorsion,  263,  264. 
Conflict  of  laws,  181-188. 

Aliens,  capacity  of,  185-187. 

Based  on  comity,  182. 

Capacity,  rules  respecting,  186. 

Caste,    no     exterritorial     effect, 
185-187. 

Comity,  basis  of,  182. 

Contracts,  186,  187. 

Decedents,  estates  of,  186. 

Definition,  181,  182. 

Domicile,  185-187. 

Foreign  judgments,  187-189. 

History,  182-185. 

Judgments, exterritorial  effect  of, 
187-189. 

Jus  gentium,  184. 

Lex  rei  sitce,  186. 

Limitation  on   practice  of,   185- 
187. 

Origin,  182-185. 

Persons,  domicile  of,  186,  187. 

Process,  186,  187. 

Property,  186. 

Rank,  no  exterritorial  effect,  186. 
Congresses,  230,  231. 

Composition,  230. 

Conclusions  of,  230. 

Declarations,  230. 

How  called,  230. 

Names,  231. 

Procedure,  230. 


Purposes,  230. 
Record,  230. 
Treaties,  230. 
Conquered  territory: 

Allegiance   of    inhabitants,  346, 

347- 
Changes  in  political   laws,  348, 

349-. 
Treaties  respecting,  342-349. 
Uti  possidetis,  rule  of,  344,  345. 
Conquests,  344-349. 

Effects   of,    on    local    laws,    348, 

349-  . 

Private  property,  345,  346. 
Public  property,  345,  346. 
Treaties  respecting,  342-349. 
Uti  possidetis,  rule  of,  344,  345. 
Conscripts,  289,  290. 
Consent  of  nations,  as  a  source  of  in- 
ternational law,  2,  3. 
Express,  2,  3. 
Tacit,  3. 
Consolato  del  Mare  {see  Sea  Laws),  8,  9. 
Rules  of,  as  to  captures,  380,  381. 
Constitution,  case  of  the,  81,  82. 
Constitutional  governments,  32,  33. 
Constructive  blockades,  470,  fiote,  471. 
Consular   agents  {see  Consuls),   211- 

221. 
Consular  jurisdiction    {see  Consuls), 
218-221. 

Appeals  from,  221. 

Based  upon  treaties,  218,  219. 

Civil,  219-221. 

Criminal,  219-221. 

Effects,  218,  219. 

How  obtained,  219. 

Reasons   for    its    exercise,    218, 

219. 
Sources,  218-220. 
Where  exercised,  218-220. 
Consuls,  211-221. 

Amenable  to  local   jurisdiction, 

218. 
Appointment,  213. 

In  United  States,  214,  215. 
Classification,  213. 
Consular  agents,  213. 

Jurisdiction,  218-221. 
Consuls-general,  213. 
Duties,  215,  216. 
Exequatur,  213. 
Exterritoriality,  in  case  of,  88. 
History  of  consular  office,   21I' 

213. 
Honors  to,  129-134. 


INDEX 


589 


Jurisdiction  over,  213-218. 
Privileges,  216,  217. 
Salutes  to,  129-131. 
Visits  of  ceremony,  130-134. 
Consuls -general  {see  Consuls),  211- 

221. 
Continuous  voyages  (j^^ Contraband), 

456-458. 
Contraband  of  war,  439-467. 

Application  of  rules  of,  445-453. 
Character  of  restriction,  439. 
Continuous  voyages,  456-45S. 
Definition,  439. 
Despatches,  461,  466. 
Destination  of  goods,  447-453. 
Field's  rule,  444. 
Friendship,  case  of  the,  463. 
Greta,  case  of  the,  463,  464. 
History,  439,  442. 
Liability  to  capture,  439,  440. 
Locality  of  captures,  439,  440. 
Mails,  conveyance  of,  464,  465. 
Occasional  contraband,  458-460. 
Penalty,  453-456. 
Peterhoff,  case  of  the,  452,  453. 
Pre-emption,  460,  461. 
Restrictions  on  neutral  trade, 437. 
Rules  for  determining,  442-448. 
Rules  of,  application  to  individ- 
uals, 440. 
Seizures  of,  where  made,  439, 440. 
Ship,  how  affected  by,  454-456. 
Springbok,  case  of  the,  450-452. 
Trent,  case  of  the,  465,  466. 
Troops,  conveyance  of,  461. 
What  constitutes,  442-448. 
Contracts,    foreign    {see    Conflict    of 
Laws),  185. 

Execution  of,  185. 
Performance,  185. 
Remedies  for  breach,  185. 
Valiaity  of,  how  determined,  185. 
Contracts  of  states  {see  Treaties),  224, 
225. 

Claims    under,    how    presented, 

225,  226. 
Corporations,  224,  225. 
Parties  to,  224,  225. 
Remedies  for  violation  of,   225, 

226. 
Violations  of,  225. 
Contributions  {see  Requisitions),  310. 
By  whom  levied,  310. 
Character,  310. 

How  levied  and  collected,  310. 
Indemnities,  310. 


Conventional  law  of  nations,  29. 
Conventions  {see  Treaties),  223-249. 
Convoy,  484-487. 

Assertion  of  right  by  Baltic  pow- 
ers, 484,  485. 

Attitude   of   the    United   States, 

484,  485. 
History,  484,  485. 
How  exercised,  484-486. 
Maria,  case  of  the,  485. 
Origin,  484. 
Correspondence,  see  Diplomatic  Cor- 
respondence. 
Courtesy   {see  Comity  ;  Ceremonial), 

124-134- 
Courts-martial,  318-321. 

Jurisdiction,  320. 

Spies,  321. 
Creation  of  states,  41,  42. 
Credence,  letter  of  (.r^^  Ministers),  196. 

Character  of,  196. 

Presentation,  196. 

Purpose,  196. 
Creole,  case  of  the,  120,  121. 
Crews   of  enemy  merchant  vessels, 
366. 

Neutral  merchant  vessels,  366. 
Crimes,  69-74. 

In  theatre  of  war,  509. 

Jurisdiction  over,  69-74. 

On  high  seas,  70,  71. 

On  merchant  ships,  69-74. 

On  public  armed  vessels,  74-77- 
Criminal  jurisdiction,  166,  172. 

Exemption    of    diplomatic    em- 
ployes, 199-210. 

Extra-territorial,  70. 
Custom  as  a  source  of  international 

law,  23. 
Customary  law  of  nations,  29. 
Customs  dues,  exemption  of   Minis- 
ters from,  209. 
Customs     of    Amsterdam     {see     Sea 

Laws),  9. 
Cutting,  A.  K.,  case  of,  170-172. 

Danish  Sound  dues,  59,  60. 
Danube,  case  of  the,  48-50. 
Dark  Ages,  effects  of,  on  international 

law,  7. 
Decedent,  estate  of,  how  disposed  of, 

186. 
Decisions    of    municipal    courts    as 

sources  of  international  law,  25. 
De  facto  governments,  34. 
Recognition  of,  34. 


590 


INDEX 


De  jure  governments,  34. 
Declaration  of  Paris,  294,   295,  384- 

387,  536-537. 

Accessions  to.  384,  385,  536,  537. 
Binding  force,  385,  536,  537. 
Blockade,  clause  respecting,  384, 

536. 
Contraband,    clause   respecting, 

384.  536- 
Enemy  ships,  clause  respecting, 

384.  536. 
History,  384,  536. 
Neutral  goods,  clause  respecting, 

384-  536. 
Parties  to,  384. 
Privateering,  384-386,  536. 
Requirements  of,  384. 
United    States    not    a  party    to, 

384-387. 
Declaration    of    St.  Petersburg,   538, 
539. 

Limitation  on  size    of  explosive 
projectiles,  538,  539. 
Declaration    of    The    Hague,    1899, 
564-566. 

Asphyxiating  gases,  use  of  pro- 
jectiles for  diffusion  of,  564. 
Balloons,     throwing    projectiles 

from,  564. 
Bullets  which  expand  or  flatten 
easily,  564. 
Declaration  of  war  (5^^  War),  279-281. 
Dependencies,  279,  280. 
Effects,  282-286. 

Former  practice  respecting,   280. 
Not  necessary,  281. 
Recognition  of  existence  of  war, 

280. 
Right  to  make,  279,  280. 
De  Martens'  definition  of  balance  of 

power,  106,  107. 
Dependent  states,  37-39. 
Confederations,  37,  38. 
Dependencies,  37,  38. 
Protectorates,  38,  39. 
Spheres  of  influence,  109,  no. 
Desertion  to  the  enemy,  penalty,  509. 
Despatches,  461-466. 

Conveyance  of,  by  neutral,  461- 

464.  _ 
Definition,  462. 
Destination,  463. 
Diplomatic,  464. 
Mails,  464-466. 
Penalty,  461.  462. 
Trent,  case  of  the,  465,  466. 


Destruction  of  captured  vessels,  361, 

364. 
Devastation,  304,  305. 

Practice,  304. 

Rule,  304,  305. 
Development  of  international  law  : 

Chivalry,  12,  13. 

Christianity,  13,  14. 

Commerce,  8-10. 

Dark  ages,  7. 

European    monarchies,    rise   of, 
15,  16. 

Feudal  system,  11,  12. 

Greece,  5. 

Grotius,  influence  of,  16-20. 

Maritime  law,  8-10. 

Oriental  monarchies,  4. 

Papacy,  13,  14. 

Revival  of  commerce,  8-10. 

Roman  law,  20-22. 

Sea  laws,  8-10. 
Diplomatic  adjustment  of  differences, 
250-254. 

Claims,  250,  251. 

Evidence,  252. 

Investigation,  252. 

Moderation,  duty  of,  253,  254. 

Presentation  of  case,  252,  253. 

Procedure,  252,  253. 

Settlement.  253,  254. 
Diplomatic     correspondence     as     a 
source  of  international  law,  25. 

Confidential  character,  25. 

Language    employed,    197,    198, 

233. 

Publication,  25. 

State  papers,  25,  26. 
Diplomatic  language,  197,  198,  233. 
Diplomatic  officers,  see  Ministers  and 
Consuls. 

Appointment,  195,  196. 

Ceremonial,  129,  134. 

Classification,  193. 

Duties,  197,  198. 

Honors  to,  129-134. 

Immunities,  199-210. 

Privileges,  199-210. 

Salutes  to,  129-131. 

Visits  of  ceremony,  130-134. 
Disarmament,    recommendation    re- 
specting, 556. 
Discovery,    vessels   engaged  in,  ex- 
empt from  capture,  374. 
Disputes,  settlement  of,  250-270,  540- 

551. 
Arbitration,  255-263,  540-551. 


INDEX 


591 


Commissions  of  inquiry,  259,  260, 

542,  543- 

Diplomatic  adjustment,  250-254. 

Embargo,  266-267. 

Forcible    measures    of    redress, 
263-270. 

Mediation,  255,  259,  541,  542. 

Moderation,  duty  of,  255. 

Pacific  blockade,  267-269. 

Peaceable  measures  of    redress, 
250-263. 

Reprisals,  264,  265. 

Retorsion.  263,  264. 
Distinctions  of  rank,  not  recognized 

at  international  law,  186. 
Distress,  vessels  in  (jd-i?  Asylum),  120. 
Distribution  (see  Prize),  372,  373. 
Divisions  of  international  law: 

Basis  of  classification,  27,  28. 

Conventional,  29. 

Customary,  29. 

Natural,  28. 

Positive,  28. 
Divorces,     foreign    {see    Conflict     of 

Laws),  185. 
Domicile  : 

Acquisition  of,  158. 

Actual  residence  required,  158. 

Aliens.  151-156. 

Animo  manendi,  158. 

Banishment,  159,  160. 

Civil  status,  136,  137. 

Changes  of,  how  made,  161,  162. 

Child,  160. 

Choice  of,  163. 

Conditions  of,  158-162. 

Conflict  of  laws,  185-187. 

Constrained  residence,  159,  160. 

Consuls,  160. 

Definition,  157. 

Dependent  persons,  160. 

Diplomatic  officers,  159. 

Distinguished  from  citizenship, 

136,  137.  157- 
Domiciled  strangers,  156. 
Double,  158. 
Exiles,  159.  160. 
Infant,  160. 
Inferior  persons,  160. 
f  Legal  status,  determined  by,  136, 

137. 
Kinds  of,  162,  163. 
Military  and  naval  officers,  160. 
Nativity,  162,  163. 
Nature  of  relation,  156,  157. 
Of  origin,  162,  163. 


Owners  of  captured  vessels,  373- 

375- 
Presumptions  as  to,  160,  161. 
Private   international    law,    185- 

187. 
Public  oflScers,  159,  160. 
Residence  required,  158,  159. 
Reversion  of,  160,  162,  163. 
Rules  of,  158-162. 
Subordinate  persons,  160. 
Wife,  161. 
Droit  d'angarie,  436,  437. 
Droit  d'aubaine,  152. 
Droit  de  detraction,  152. 
Duty  of  non-interference,  98,  99. 
Ecumenical      councils     (see    Roman 

Church), 13,  14. 
Effects  of  a  state  of  war,  282-286. 
On  belligerents,  282. 

Citizens,  282-285,  288. 
Neutrals,  2S1. 
Property,  282-285. 
Treaties,  285,  286. 
Embargo,  266,  267. 
Embassies  (see  Legation),  190-210. 
Enemy  property  on  land,  see  Military 
Occupation. 

Booty,  310,  311. 
Classification,  306. 
Contributions,  310. 
Private,  306,  307,  312,  313. 
Public,  306. 
Requisitions,  308.  309. 
Treatment  of,  306-313. 
Enemy  property  on    sea  (see    Mari- 
time Capture),  357-375- 
Enforcement  of  treaty  stipulations, 

94,  95,  102. 
Enlistment  of  troops  in  neutral  terri- 
tory, 397-400. 
Envoys  extraordinary  (see  Ministers), 

195. 
Equality  of  states,  36. 

Equality  of  rights,  36. 
Inequality   of  power  and   influ- 
ence, 36. 
Espionage  (see  Spies),  321,  322. 
European  concert,  108,  109. 
Exchange  of   prisoners  of  war,  316- 
31S,  517,  518. 
Basis  of,  316. 
Cartels,  316,  317,  339. 
Credits,  316. 
Exclusive   dominion,  claims   to,    57, 

58,  387-390- 

Effects  on  neutrality,  387-390. 


592 


INDEX 


Execution  of  foreign  contracts,  185. 
Exemptions    from    jurisdiction,    see 
Exterritoriality. 

Ambassadors,  87,  88,  200,  211. 

Armies  in  transit,  82-85. 

Consuls,  216-218. 

Diplomatic  employes,  200,  211. 

Merchant  vessels,  70-74. 

Ministers,  87,  88,  200-211. 

Sovereigns,  85-87. 

War  vessels,  74-83,  88,  89. 
Exequatur  (see  Consuls),  213. 

Revocation  of,  213,  214. 

Withdrawal  of,  213,  214. 
Expatriation,  143-151. 

Consent,   144-147. 

Consequences  of,  144,  145. 

Definition,  143,  144. 

Heinrich's  case,   147,  148. 

Indelible  allegiance,  144. 

Involuntary,  144. 

Koszta's  case,  148-150. 

Largomarsini's  case,  150. 

Naturalization,  139-143,  147-151. 

Purpose,  143,  144. 

Restrictions  on,  145-147. 

Views  as  to,  145-147. 

Voluntary,  143,  144. 
Expeditions,  marauding,   100,  loi. 

Originating  in  neutral  territory, 
404,  405. 
Explosive  bullets,  299,  538,  539,  564, 

565. 
Extensive    interpretation   (see  Treat- 
ies), 247,  248. 
Exterritoriality,  74-89. 

Ambassadors,  87,  88,  200-210. 
Armies  in  transit,  83-85. 
Baltimore,  case  of  the,  80-82. 
Constitution,  case  of  the,  81,  82. 
Consuls    in    Eastern    countries, 

88. 
Diplomatic  employes,  87,  88,  200- 

210. 
Extent  of  privilege,  74. 
Foreign    residents     in     Eastern 

countries,  88. 
Legations,  87,  88,  200-210. 
Maine,  case  of  the,  77-80. 
Ministers,  87,  88,  200-210. 
Nature  of  privilege,  74. 
Public  armed  vessels,  74-83,  89. 
Sitka,  case  of  the,  77. 
Sovereigns,  85-87. 
Troops,  83-85. 
Extinction  of  states,  42. 


Extraditable  offences: 

Character  of,  175,  176. 

Evidence  as  to,  by  what  law  de- 
termined, 176. 

Political  offences,  177. 
Extradition,  166-180. 

Comity,  surrender  by,  167,  174. 

Conditions  of,  175-177. 

Crimes  committed   abroad,  166, 
167. 

Criminal  jurisdiction,  166-169. 

Cutting  case,  170-172. 

Definition,  178. 

Difference  of  view  as  to  criminal 
jurisdiction,  168. 

Evidence    as    to    offence,    suffi- 
ciency of,  176. 

Extraditable  offences,  174,  175. 

Extra-territorial  crimes,  168,  169. 

Forums  of  trial,  177. 

Interstate  extradition,  178-180. 

Methods  of,  174. 

Municipal  laws,   surrenders  un- 
der, 174. 

Political   offenders,   not   surren- 
dered, 177. 

Procedure  in,  174. 

Requests   for,  by   whom    made, 

174,  175- 
Robins'  case,  177, 178. 
Rules  of,  174-177. 
Sufficiency  of  evidence,  by  what 

law  determined,  176. 
Surrender  of  offenders,  175-177. 
Treaties  of,  174,  175,  177,  178. 
Strictly  construed,  174. 
Extradition  treaties,  174-178, 

Citizens   of   surrendering   state, 

176,  177- 
Conditions   of   extradition,   175- 

178. 
Construction  of,  174. 
Evidence  as  to  offence, sufficiency 

of,  176. 
Extraditable  offences,  174,  175. 
Offences    against     surrendering 

state,  176.  t 

Political  offences,  177. 
Purpose,  173,  174. 
Requests    for    extradition,    how 

made,  174,  175. 
Restriction  on  prosecution  of  of- 
fender, 176. 
Surrender  of  subjects,  176,  177. 
United    States    treaties   of,    177, 

178. 


INDEX 


593 


Extra-territorial  jurisdiction,  69-89. 
Ambassadors,  87,  88. 
Armies  in  transit,  83-85. 
Consuls,  88. 
Crimes  in  unoccupied  territory, 

70. 
Extent,  69,  70. 
Foreign    residents    in     Oriental 

countries,  88. 
Merchant  vessels  on  high  seas, 

70,  71. 

In  foreign  ports,  71-74. 
Piracy,  61,  62. 
Public  armed  vessels  in   foreign 

ports,  74-83,  88,  89. 
On    high  seas,  70,  74. 
Sovereigns,  85-87. 
Troops,  83-S5. 

Feudal    system,  influence  on  inter- 
national law,  II,  12. 
Field's  rule  {see  Contraband),  444. 
Fisheries,  57,  60,  61. 

Coast,  exemption  in  time  of  war, 
6r,  374-  375- 

Freedom  of,   57,  60,  61. 

In  high  seas,  57,  60,  61. 
Fishing-boats,  exemption  from  capt- 
ure, 374,  375. 
Flag  of  enemy,  use  of,  prohibited  on 
land,  296,  297,  512. 

Permitted  at  sea,  297. 
Flag  of  Geneva  Convention,  530. 
Flags  of  protection,  519. 
Flags  of  truce,  337-340,  518, 519,  556, 
557,  573,  574- 

Abuse  of,  337. 

Bearers,  337. 

Communication  by,  337. 

Duty  to   receive,    not   absolute, 
337- 

Immunity  of,  337-340,  518,  519. 

Right  to  send,  337. 

Treatment  of,  337. 
Florida,  case  of  the,  428. 
Forces   employed   in   war,   28S-':95, 
514,  551,  570. 

At  sea,  293-295,  305,  306. 

Guerillas,  292,  322,  514. 

Lev^e  en  masse,  290,  551,  570. 

Militia,  289,  290. 

On  land,  289-293. 

Partisans,  290,  514. 

Privateers,  293. 

Regular  troops,  289,  290. 

Restrictions  on,  292,  293. 


Savages,  292,  293. 

Semi-civilized  races,  291,  292. 

Volunteers,  289-290. 
Forcible   measures  of   redress,   263- 
270. 

Embargo,  266,  267. 

Justifiable,  when,  263. 

Limitation  on,  263. 

Pacific  blockade,  267-270. 

Purpose,  263. 

Reprisals,  264,  265. 

Retorsion,  263,  264. 

Right  to  resort  to,  263. 
Foreign  enlistment,  397-400. 
Foreign  enlistment  acts  {see  Neutral- 
ity Laws),  432-434. 
Foreign   judgments   {see  Conflict   of 
Laws),  187,  18S. 

Conditions   to   be   fulfilled,    187, 
188. 

Effect  of,  187. 

Enforcement  of,  188. 

Execution,  188. 

Hearing,  187. 

Jurisdiction  of  tribunal,  187. 

Parties,  187. 

Pleading  of,  in  bar,  188. 

Practice  of  states  in  respect   to, 
188. 

Reciprocity  in,  187,  188. 

Subject  matter,  187. 

Why  produced,  188. 
Foreign  laws  {see  Conflict  of  Laws), 
185,  186. 

Caste  not  recognized,  186. 

Contracts,  185,  186. 

Criminal   laws  not   enforceable, 
186. 

Distinctions  of  rank,  186. 

Penal  laws  not  enforceable,  186. 

Process,  186. 

Property,  real  and  personal,  1S6. 

Slavery,  186. 
Foreign  residents  in  Oriental   coun- 
tries, 88. 

Duty  of,  to  observe  local  law,  96. 

Protection  of,  95-98. 

Redress  of  wrongs  suffered  by, 
95-98. 
Fortified  places,  attack  and  defence 
of,  301-303. 

Defence  of,  301-303. 

Duty  of  commander,  301-303. 

Surrender  of,  302,  303. 
France,  neutrality  laws  of,  435. 
Franconia ,  case  of  the,  56,  57. 


594 


INDEX 


Free  ships,  free  goods,  382-383. 
Freedom  of  the  sea,  57. 
Friendship,  case  of  the,  463. 
Full  power  {see  Ambassadors),  196. 

Character,  196. 

Contents,  196. 

Presentation,  196. 

Purpose,  196. 

General    truce    {see   Armistice),    339- 

341,  521-523. 
Geneva     arbitration       {see     Alabama 
Case),  415-422. 

Award,  420. 

Composition  of  tribunal,  417. 

Decision,  420. 

History,  415. 

Indirect  claims,  419. 

Meeting  of  tribunal,  418. 

Results  of,  421,  422. 

Rules  of  interpretation,  419,  420. 

Three  rules,  417. 

Treaty  of  Washington,  416. 
Geneva  conventions,  526-533. 

Additional  articles  of  1868,  531- 

533- 
Additional  articles  of  1899,  561- 

565. 
Ambulances,  529,  530. 
Brassard,  530. 
Character,  526-529. 
History,  526-539. 
Hospital  ships,  531-535,  561-564- 
Hospitals,  529,  530. 
Neutrality    of  ambulances,    529, 

530. 
Neutrality  of  hospital  ships,  531- 

535, 561-564. 
Neutrality  of  hospitals,  529-530. 
Purpose,  526-529. 
Red  Cross,  530. 
Sick,  treatment  of,  529-533. 
Suspension  of,  533. 
Wounded,  529-535. 
Good  offices  {see  Mediation),  255,  259, 

541-542. 

International  agreement  respect- 
ing, 541,  542. 
Governments,  32-34. 
Absolute,  33. 
Aristocracies,  33. 
Classification,  32. 
Constitutional,  32,  33. 
De  facto,  34. 
De  jure,  34. 
Democracies,  33. 


Departments  of,  39-41. 

Oligarchies,  33. 

Powers  of,  32,  39-41. 

Republics,  33. 
Governors-General,    visits   and     sa- 
lutes, 134. 
Great  Britain: 

Neutral  policy  of,    380-383,   387- 

392. 

Neutrality  laws,  432-434. 
Greece,  international  law  of,  5. 
Greta,  case  of  the,  463,  464. 
Grotius  {see  Text-writers),  16-20. 

Authority  of,  20. 

Influence  on  international  law, 
16-20. 

Jus  gentium,  18,  19. 

Law  of  nature,  18,  19. 

Place  of,  in  international  law,  20. 

Theory  of  international  law,    18, 
19. 

Work  of,  18,  19. 
Guarantee,  treaties  of,  243. 
Guerillas,  292,  322,  514. 

Acts   not    authorized,    322,    323, 

514. 

Nature  of  offence,  322. 

Penalty,  323. 
Guides,  516. 
Guidon  de  la  Mar  {see  Sea  Laws),  9. 

Hague  conference,  the,  258-263,  540 

564. 

Arbitral  agreement,  258-263. 
Declarations,  564,  565. 
Instruments  of  war,  551-561. 
International  commission  of  in- 
quiry, 259,  260. 
Maritime  war,  561-564. 
Recommendations,  566. 
Rules  of  war  on  land,  551-561. 
Hanseatic    League,   constitutions   of 

the  {see  Sea  Laws),  9. 
Harbor   regulations,  observance   of, 

by  ships  of  war,  75. 
Head  money  {see  Prize),  373. 
Allowance  of,  373. 
Rates,  373. 
Heinrich,  case  of,  147,  148. 
High  Seas,  57-62. 

Claims   to   exclusive    dominion 

over,  57,  58. 
Closed  seas,  58,  59. 
Extent,  57. 
Fishery  in,  57,  60,  61. 
Freedom  of,  57. 


INDEX 


595 


Jurisdiction  over  ships  on,  69-74. 

Marine  league,  54-56. 

Navigation  of,  57. 

Piracy,  61,  62. 

Ship  canals,  62,  63. 

Straits,  59,  60. 

Submarine  telegraph  cables,  64, 
65. 
History  as  a  source  of  international 

law,  26. 
History  of  international  law,  4-20. 

Chivalry,  12,  13. 

Christianity,  13,  14. 

Commerce,  8-10. 

Dark  Ages,  7. 

European    monarchies,     revival 
of,  15,  16. 

Feudal  system,  11,  12. 

Greece,  5. 

Maritime  law,  8-10. 

Oriental  monarchies,  4. 

Papacy,  13,  14. 

Revival  of  commerce,  8-10. 

Roman  law,  20-22. 

Sea  laws,  8-10. 
Holy  Alliance  {see  Monroe  Doctrine), 

no.  III. 
Holy  Roman  Empire,  14,  15. 

Influence  on    international  law, 
14,  15- 

Relations  with  Papacy,  14,  15. 
Honors  {see  Salutes,  Visits),  124-134. 
Horsa,  case  of  the  {see  Neutrality),  409. 
Hospitals,  see  Geneva  Convention. 

Distinctive  flag,  519. 

Immunity  of,  in  war,  507. 

Neutralization  of, in  war,  529,  530. 

Protection  in  war,  519. 
Hospital  ships,  neutralization  in  war, 

531-535.  561-564. 
Hostages,  366. 

Hostile  expeditions  {see  Neutrality), 
404.  405- 

Augmentation  of  force,  407,  408. 
Hot  shot,  299. 
Hotel  of  ambassador,  199,  206-210. 

Asylum  in,  209,  210. 

Immunity  of,  206,  207. 
Humanity,  117,  118. 

Duty,  117. 

Expression  of  duty,  117. 

Extent,  117. 

In  war,  2S6-288. 

Method  of  performance,  117,  118. 

Immunities  of  ambassadors,  199- 
210. 


Imperfect  rights  : 

Asylum,  92,  118-122. 

Ceremonial,  124. 

Character,  116. 

Comity,  122. 

Duties,  92,  116. 

Humanity,  117. 

Intercourse,  122-124. 

Moral  claims,  92,  116. 

Mutual  respect,  124. 

Reciprocal,  118. 
Imposts,  customs,  exemption  of  am- 
bassadors from,  209,  210. 

Personal,   exemption   of   aliens, 
154. 
Impressment  of  seamen,  493-497. 
Indefinite  occupation,  335,  336. 
Indelible  allegiance,  doctrine  of,  144. 
Independence  of  states,  36,  278,  279. 

Recognition  of,  278,  279. 
Innocent  passage,  59. 
Inquiry,     international     commission 
of,  259,  260,  542,  543. 

Authority,  260. 

Composition,  260. 

Decision,  260. 

Effect  of  finding,  260. 

Facts,  findings  of,  260. 

Investigation,  260. 

Jurisdiction,  260. 

Procedure,  260, 

Purpose,  260. 

Report,  260. 
Institute  of  International  Law,  rules 

of  war,  561-581. 
Instruments  used  in  war,  298-301. 

Balloons,  299. 

Bar-shot,  299. 

Chain-shot,  299. 

Character,  298,  299. 

Effects  of,  301. 

Hot-shot,  299. 

Injuries  caused  by,  298,  299, 

Mines,  300,  301. 

Projectiles,  restrictions  on,  299. 

Torpedoes,  299,  301. 

Wounds  caused  by,  298,  299. 
Insurrection  {see  Civil  War),  523-525. 

Interference    to    suppress,    102, 
103. 
Insurrections  {see  Internal  Wars),  274, 

276-279,  523. 
Intercourse,  122,  124. 

Commercial,  123,  124. 

Interstate,   122,  123. 

Restrictions  on,  123,  124. 


596 


INDEX 


Intercourse      between     belligerents, 
336-338,  516. 

Armistices,  339-341. 

Authority  for,  336. 

Capitulations,  339. 

Cartels,  316,  339. 

Flags  of  truce,  337. 

Licences  to  trade,  338. 

Necessity,  336. 

Purpose,  336. 

Safe  conducts,  337,  338. 

Safeguards,  337,  338. 

Sanction,  337. 

Truces,  339-341. 
Interference,  98-115. 

Amelia  Island,  case  of,  loi. 

Balance  of  power,  104-108. 

Caroline,  case  of  the,  loi,  102. 

Concert  of  Europe,  108,  109. 

Duty  of  non-interference,  99. 

Enforcement   of   treaty    stipula- 
tions, 94,  95,  102. 

Marauding  expeditions,  100,  loi. 

Monroe  Doctrine,  110-115. 

Oppressed  nationalities,  103,  104. 

Primacy  of    the    great    powers, 
108,  109. 

St.  Mark's,  Florida,  case  of,  100, 

lOI. 

Right  of,  98,  99. 
Self-defence,  93,  99-102. 
Self-preservation,  93. 
Spheres  of  influence,  log,  no. 
Suppression  of  insurrection,  102, 

103. 
Internal  wars,  274-279. 

Belligerency  of  insurgents,    276, 

277- 
Belligerent  parties,  275-277. 
Civil  wars,  274. 
Claims  for  damages,  353,  354. 
Classification,  274. 
Conditions  of  belligerency,  276- 

278. 
Definition,  274. 
Destruction  of  property  in,  350- 

354- 
Independence,  278,  279. 
Injuries    inflicted    during,    350- 

354. 
Insurrections,  274. 
Loss    of    property    due    to,    353, 

354- 
Mob  violence,  353,  354. 
Parties  to,  275,  277. 
Rebellions,  274. 


Recognition  of  belligerency,  276, 

277. 
Recognition     of     independence, 

278,  279. 
International     arbitration,     255-263, 

540-551. 
International  law: 

Classification,  3,  27-29. 
Development,  10-20. 
Divisions,  27-29. 
History,  4-20. 
Parties,  29. 
Obligatory  force,  4. 
Sanction,  4. 
Sources,  20-27. 
International    Peace   Conference    of 

1899,  258-263,540-551. 
Internment   of  prisoners    of  war   in 
neutral  territory,  315,  316,  560,  581. 
Interpretation  of  treaties,  245-248. 
Art,  terms  of,  246. 
Beneficial  clauses,  246. 
Earlier  clauses,  247. 
Entire    instrument   to    be    con- 
sidered, 247. 
Extensive  interpretation,  247. 
Favorable  clauses,  246. 
General  clauses,  247. 
Harsh  clauses,  246. 
Inoperative  interpretation,  246. 
Later  clauses,  247. 
Liberal  clauses,  246. 

Interpretation,  247. 
Restrictive  interpretation,  247. 
Sense  of  words,  246. 
Special  clauses,  247. 
Spirit  of  instrument,  246,  247. 
Technical  terms,  246. 
Unfavorable  clauses,  246. 
Usual  meaning  of  words,  246. 
Whole    instrument    to    be     con- 
sidered, 247. 
Interstate    extradition   (see   Extradi- 
tion), 178-130. 
Intervention   (see   Interference),    98- 
115- 
Balance  of  power,  104-108. 
Conformity     to    treaty     stipula- 
tions, 102. 
Justification  of,  98-115. 
Mon'-oe  Doctrine,  110-115. 
Non-interference,  98,  99. 
Oppressed  peoples,  109,  no. 
Primacy   of   great   powers,   108, 

109. 
Spheres  of  influence,  109,  no. 


INDEX 


597 


Investment    {see    Siege  ;    Blockade), 

439-  440,  468,  554. 
Itata,  case   of    the   (see    Neutrality), 

410,  411. 

Judgments  as  sources  of  international 
law,  24,  25. 

Of  arbitral  tribunals,  24,  25. 

Of  municipal  courts,  25. 

Of  prize  courts,  25, 
Judgments  of  Oldron,  8. 
Jurisdiction  : 

Civil  cases,  39. 

Coast  sea,  54-57. 

Consular,  88,  218-221. 

Criminal,  39,  166-177. 

Exclusive,  41,  69-83. 

Extra-territorial,  69-89. 

On  high  seas,  57-65,  69-74. 

Unoccupied  territory,  70. 

Straits,  59. 
Jiis  civile,  20-22. 
Jus  feciale,  5,  6,  21. 
Jus  gentium,  18,  20-22,  184. 

Definition,  19,  note. 

Souice  of  international  law,  18- 
22. 

Source   of   private  international 
law,  184. 
Jus  naturce,  18,  note. 

Koszta,  case  of,  148-150. 

Language  of  diplomacy,  197. 

Treaties,  233. 
Largomarsini,  case  of,  150. 
Law  in  general,  1-4. 

Classification,  i,  2. 

Definition,  i. 

International,  2-4. 

Law  ot  nations,  2,  twte. 

Municipal,  2-4. 

Natural,  i. 

Physical,  i. 

Political,  I. 
Law  of  hostile  occupation,  333-334. 
Law    of    nations,    see    International 
Law. 

Classification,  3,  27-29. 

Definition,  i,  2,  note. 

Development,  10-20. 

Divisions,  27-29. 

History,  4-20. 

Parties  to,  29. 

Sanction,  4. 

Sources,  20-27, 


Law  of  hostile  occupation,  501,  502. 
Laws  of  war  : 

American  instructions,  499-525. 

Attack  of  places,  30i-'303. 

Balloons,  299. 

Booty,  310. 

Brussels  rules,  567-482. 

Capitulations,  339. 

Captured  property,  310,  311. 

Cartels,  317-339- 

Character    and    tendency,    286- 

288. 
Collective  penalties,  324,  325. 
Combatants,  2S8-295,  312-314. 
Contributions,  310,  311. 
Crimes  and  offences  against,  318- 

326. 
Deceit,  296. 
Devastation,  304,  305. 
Enemy  property,  306-314. 
Flag  of  enemy,  296,  297. 
Flag  of  truce,  336,  337. 
Force,  restriction  on,  288. 

Use  of,  288. 
Forces  employed,  288-293. 
Geneva  convention,  526-535,  561- 

564. 
Good  faith,  rule  of,  296. 
Guerillas,  322-514. 
Hague  convention,  551-561. 
Hostilities,  295-306. 
Instruments  used,  298-301. 

Restrictions  on,  298,  299. 
Intercourse  in  war,  336-339. 
Leve'es  en  masse,  290,  510. 
Martial  law,  501,  502. 
Military  jurisdiction,  318-321. 
Military  necessity,  304,  305,  320, 

321,  324,  327. 
Military  occupation,  327-336. 
Military  rule,  333-336. 
Military  tribunals,  318-321,  333- 

336. 
Non-combatants,  312,  313. 
Partisans,  290,  514. 
Pillage,  308,  323. 
Prisoners  of  war,  313-318. 
Property,  private,  306-313. 

Public,  306. 
Quarter,  297. 
Rebellions,  274-280. 
Requisitions,  308-310. 
Restrictions  on,  295,  296. 
Retaliation,  326,  327. 
Spies,  321,  322,  515. 
Status  of  hostility,  288,  289. 


598 


INDEX 


Subjects  treated  in,  288. 

Tendency,  286-288. 

Termination  of  war,  339. 

Truces,  339. 

Uniform  of  enemy,  296,  297. 
Legal  status  of  persons,  determined 

by  domicile,  136-138. 
Legationary  asylum,  209,  210. 

Accorded,  when,  209. 

Limitation,  right  of,  210. 
Legates  (see  Ministers),  195. 
Legation  {see  Ministers),  190-211. 

Asylum,  209,  210. 

Attaches,  193,  194,  210,  211. 

Exterritoriality,  200-210. 

Hotel,  206,  207. 

Origin  of  right,  190,  191. 

Right  of,  191,  192. 

Secretaries,  193,  194. 
Letters  of  Marque  (see  Privateers),  294. 
Levant,  consular  institutions  in,  211, 
212. 

Consular    jurisdiction,   88,    218- 
221. 
Lev/e  en  masse,  290,  510. 

Authorization,  290. 

Badge,  290. 

Conditions,  290. 
Libraries,  protection  of,  in  war,  507. 
Licenses  to  trade,  338,  339. 

Authority  for,  338,  339. 

By  whom  issued,  338,  339. 

Purpose,  338,  339. 

To  whom  issued,  338,  339. 

Violation  of,  penalty,  339. 
Lieber,  Instructions  for  the  govern- 
ment of  armies,  etc.,  499. 
Loss  of  sovereignty,  42. 

Territory,  66,67. 
Mails,  neutral  conveyance  of,  464, 465. 

Destination  of,  464,  465. 

Liability  to  seizure,  464,  465. 
Maine.     Case  of  the,  77-80. 
Marauding  expeditions,  see  Interfer- 
ence. 

Amelia  Island,  case  of,  loi. 

Caroline,  case  of  the,  lOi,  102. 

St.  Marks,  Florida,  case  of,  100, 

lOI. 

Marginal   Sea  {see   Marine   League), 

54756. 
Maria  Luz,  case  of  the,  121,  122. 
Marine  artillery,  recommendation  of 

The  Hague  Conference,  566. 
Marine  league  {see  Territory),  54-56. 
Case  of  the  Franconia,  56,  57. 


Extent  of,  55. 
Jurisdiction  over,  55. 
Limits,  55. 
Maritime     capture     {see    Captures), 

357-375- 

Authority  for,  358-361. 
By  whom  made,  360. 
Duty  of  captor,  362,  363. 
Legality    of,    how    determined, 

369-375- 
Locality  of,  360,  361. 
Neutral  waters,  360,  361. 
Privateers,  293-295,  360,  373. 
Prize,  361-363. 
Prize  courts,  369-375. 
Ransom,  363-369. 
Recapture,  363-369. 
When  complete,  361,  362. 
Where  made,  360,  361. 
Maritime  ceremonial,  124-131. 

Agreement    as    to   salutes,    I2g, 

130. 
Boarding  visit,  130,  131. 
Festivals,  133. 
Foreign  ports,  ceremonies,  129- 

131- 

High  seas,  128,  129. 

Honors,  124-126,  128-131. 

National  anniversaries,  133. 

Salutes,  128-134. 

Visit  of  ceremony,  130-134. 
Maritime  cities  of  Europe,  8-10. 

Development     of     international 
law  among,  8-10. 

Development  of   neutrality 
among,  377-380,  387-389- 
Maritime  law  of  Europe,  8-10. 

Development  of,  8-10. 

Early  codes,  8-10. 

Influence   of,  in  international 
law,  8. 

Sea  laws,  8-10. 

Sources,  8-10. 
Maritime   law    of   Wisbuy    {see    Sea 

Laws),  9. 
Maritime  war,  rules  of,  305,  306,  357- 

375- 

Bounty,  373. 
Captures,  358-364. 
Distribution,  372,  373. 
Domicile,  373-375. 
Exemption    from    capture,    374, 

375- 
Forces  employed,  293-^295,  360. 
Head  money,  373. 
Hostages.  366. 


INDEX 


599 


Letters  of  marque,  294,  295,  360, 

373- 
Postliminy,  306-369. 
Privateers,  293-295,  360,  373. 
Prize,  361-369. 
Prize  courts,  369-375. 
Prize  crews,  362,  363. 
Prize  money,  372,  373. 
Ransom,  364-366. 
Recapture,  366-369. 
Right  of  capture,  358,  359. 
Rules  of  domicile,  373-375. 
Salvage,  367,  368. 
Tendency  of  rules,  357,  358. 
Title  to  captured  property,  361, 

362. 
Usages  of  war  at  sea,  305,  306. 
Marriage,     foreign    {see    Conflict    of 
Laws),  185. 
Consuls,  power  of,  to  solemnize, 

215- 

Validity  of,  how  determined,  185. 
Martial  law  {see  Military  Occupation), 

501,  502. 
Measures  of  redress,  250-270. 

Amicable,  250-254. 

Arbitration,  255-263. 

Diplomatic  adjustment,  250-254. 

Embargo,  266,  267. 

Forcible,  263-270. 

Mediation,  255-259. 

Pacific  blockade,  267-270. 

Reprisals,  264,  265. 

Retorsion,  263,  264. 
Mediation,  255,  259,  260. 

Agreement  in  respect  to,  259,  260. 

Binding  force,  255. 

Compared  with  arbitration,  257. 

Duty  of  moderation,  253,  254. 

Effect  of  offer  of,  255-259. 

Good  offices,  255-259. 

History,  255. 

Offers  of,  259. 

Power  of  mediator,  259. 

Procedure,  255-259. 

Purpose,  255-259. 

Treaty  respecting,  259. 
Medeival  empire,  14,  15. 

Influence  on    international  law, 

14,  15- 
Relations  with   Roman  Church, 

14,  15- 

Mediterranean    cities,     development 
of  international  law  among,  387— 

389- 
Neutrality  among,  377-380. 


Merchant  vessels,  70-74. 

Approach  to   verify  nationality, 

488. 
Asylum  to,  118-122. 
Causes  of  action  arising  on,  70- 

74- 

Crimes  on,  70-74. 

Exterritorial  character,  69-74, 

Jurisdiction  over,  70-74. 

National  character,  70. 

Sally,  case  of  the,  73,  74. 

Salutes  by,  129. 

Search  of,  in  peace,  487,  488. 
In  war,  479-487. 

Territorial  character,  70-74. 

Wildenhus,  case  of,  72,  73. 
Mexico,  French  occupation  of,  114. 
Military  attaches,  210,  211. 

Duties,  210. 

Immunities,  210. 

Privileges,  210. 
Military  ceremonial,  124-134. 

Agreement  as  to  salutes,  129,  130. 

Boarding  visits,  130,  131. 

Festivals,  133. 

Honors,  124-126,  128-131. 

National  anniversaries,  133. 

Salutes,  128-134. 

Visits  of  ceremony,  130-134. 
Military  jurisdiction  {see  Military  Oc- 
cupation), 318-336,  503,  504. 

Character,  318-320. 

Classification,  320. 

Crimes  of  violence,  323,  324. 

Collective  responsibilities  of  com- 
munities, 324,  325. 

Courts  martial,  320,  321. 

Guerillas,  322. 

Law  of  hostile  occupation,  333, 

334- 

Military  commissions,  318-321. 

Offences,  318-326. 

Spies,  321. 

Pillaging,  323. 

Retaliation,  325,  326. 

Tribunals,  318-321. 

Where  exercised,  318-321. 
Military  law,  jurisdiction  under,  320. 
Military  necessity,  503,  504. 
Military  occupation,  327-336,  558,  559, 
575-57S. 

Allegiance   of  inhabitants,   327- 
330. 

Authority  of  occupant,  327,  331- 

335- 
Courts  in  occupied  territory,  332. 


6oo 


INDEX 


Different  views  of,  327-330. 
History  of,  327-330. 
Indefinite,  335. 
Martial  law,  333-335- 
Political  changes,  332. 
Present  view,  330-335. 
Property,  treatment  of,  330,  335. 
Punishment   of   crime,  318-321, 

330-336. 
Rights  of  occupant,  330-335. 
Suspension    of   law  in  occupied 
territory,  331-335- 
Military  rule  {see  Martial  law),  333, 334. 
Military  service: 

Exemption  of  aliens  from,  154. 
Obligations  of   citizens   to  render, 

154- 
Militia,  employment  of,  in  war,  289, 

290. 
Mines  (see  Torpedoes),  299-301. 

Submarine,  290,  300. 

Use  of,  in  land  operations,  200, 
301. 
Ministers,  190-211. 

Appointment  of,  195,  196. 

Asylum  in  hotel,  210,  211. 

Attaches,  201,  210,  211. 

Cases  against,  where  triable,  207, 
208. 

Civil      jurisdiction,      immunity 
from,  205. 

Criminal  jurisdiction,  immunity 
from,  202-205. 

Classification,  193,  194. 

Credence,  letters  of,  195,  196. 

Customs  dues,  exemption  from, 
209,  210. 

Duties,  197. 

Envoys,  193-195. 

Exterritoriality,  87,  88,  200-210. 

Full  powers  of,  196. 

Honors  to,  132. 

Hotel,  206,  207. 

Immunities  of,  199-210. 

Inviolability  of,  199-210. 

Jurisdiction  over,  207,  208. 

Legates,  195. 

Ministers  resident,  194,  195. 

Nuncios,  195. 

Origin,  190,  191. 

Privileges,  199-210. 

Rank,  194,  195. 

Reception,  195,  196. 

Religious  worship,  208,  209. 

Representative    character,     194, 
195- 


Right  to  receive,   I91,  192. 

Right  to  reject,  191-192. 

Right  to  send,  191,  192. 

Suspension  of  functions,  198. 

Termination  of  mission,  198,  199. 

Titles  of,  195. 
Ministers  plenipotentiary,  193,  195. 

Resident,  194,  195. 
Missions  {see  Ministers),  190-210. 

Suspension  of,  198. 

Termination  of,  198,  199. 
Mississippi,    case    of   the   {see    River 

Navigation),  50-52. 
Moderation,  duty   of  {see   Disputes), 

253.  354- 
Monroe  Doctrine,  110-115. 
Application  of,  113-115. 
Authorship,  iii,  112. 
Cause  of,  iio,  iii. 
Declaration,  iii,  112. 
Holy  Alliance,  no,  in. 
French    occupation   of    Mexico, 

case  of,   114,  115. 
Limitations  on,  113. 
Panama  Congress,  113,  noie. 
Statement  of,  in,  112. 
Venezuelan   boundary,  case    of, 

115- 
Yucatan,  case  of,  113,  114. 
Most     favored     nation    clause     {see 

Treaties),  248,  249. 
Municipal  courts: 
Application  of   international   law, 

25-  . 

Decisions  of,  as  a  source  of   inter- 
national law,  25. 
Municipal  law: 

Compared  with  international  law, 

4- 

Obligatory  force,  2. 

Parties  to,  i,  2. 

Sanction,  2-4. 

Source  of  international  law,  24. 

Sources,  i,  2. 
Museums,    protection    of,     in     war, 

507. 
Mutual  respect  (j-^^"  Ceremonial),  124- 

134- 
Ceremonial,  126-134. 
Maritime  ceremonies,  128-131. 
Military  ceremonies,  132-134. 
National  anniversaries,  133. 
Origin  of  practice,  124-126. 
Present  practice,  126-134. 
Salutes,  128-134. 
Visits,  130-134. 


INDEX 


6oi 


National   anniversaries,    observance 

of,  133. 
National   character  {see  Citizenship), 

135-165. 

Acquisition,  138,  139. 

Distinguished     from      domicile, 
135-138,  157. 

Forfeiture  of,  139,  143-151. 

Merchant  ships,  70,  71. 
Nationality  of  persons,  135-165. 

Of    owners   of    captured   ships, 
373-375- 

Of  ships,  373-375- 
Nations  (see  States),  31. 
Naturalization,  138-151. 

Acquisition    of    citizenship    by, 
138-140. 

Collection,  140. 

Conditions  of,  139,  140. 

Consequences,  141,  142. 

Consent  of  state  of  nativity,  140- 
142. 

Definition,  139,  140. 

Effects  of,  139-142. 

Forfeiture,  139. 

Heinrich's  case,  147,  148. 

Individual,  139,  140. 

Koszta's  case,  148-150. 

Largomarsini's  case,  150. 

Oath  of  allegiance,  140. 

Residence  required,  140. 

Renunciation  of  allegiance,  140. 

Treaties,  142,  143. 
Naturalization  treaties,  142,  143. 

Of  the  United  States,  143. 
Naturalized  citizens,  139-151. 
Natural  law  {see  Jus  Geiitiutu),  18,  19, 

note. 
Natural  law  of  nations,  28. 
Naval  attaches,  210,  211. 
Navigable  rivers,  46-54. 

Regulation  of,  4S-54. 
Navigation,  right  of,  46,  4S-54,  57-60. 

Boundary  rivers,  46,  48-54. 

Coast  sea,  54-56. 

High  seas,  57,  58. 

Marginal  sea,  54-56 

Rivers,  46,  48-54. 

Straits,  59,  60. 

Three  mile  limit,  54-56. 
Negotiation  of  treaties  {see  Treaties), 

229-236. 
Neutrality,  276,  376-438. 

Alabama,  case  of  the,  411-415. 

Armed,  394,  395. 

Asylum,  right  of,  422-424. 


Augmentation  of  force,  407,  408. 

Character  of  rebellion,  376,  377. 

Cojisolato    del  iMare,  rules  of   re- 
specting, 380,  381. 

Declaration  of  Paris,  384-387. 

Definition,  376. 

Duty  of,  how   determined,  406- 
408. 

England,  influence  of,  392. 

Enlistment  of  troops,  397-400. 

Exclusive  dominion,  claims  to, 
387-390. 

Free  ships,  free  goods,  382-383. 

Geneva  arbitration,  415-422. 

Gradations  of,  394. 

History,  377-393- 

Horsa,  case  of  the,  409,  410. 

Hostile  Expeditions,  404,  405. 

Itata,  case  of  the,  410. 

Laws,  431-436. 

Permanent,  394. 

Responsibility  of  states  for  acts 
of  subjects,  400-403. 

Rules  of  1756,  390,  391. 

Rules  of  1793,  391. 

Strict,  395-397- 

Terceira  affair,  408,  409. 
Neutrality  laws,  431-436. 

Austria,  436. 

Character,  431,  432. 

Citizens  affected  by,  431,  432. 

Continental  states,  435,  436. 

Foreign    enlistment    acts,    432- 

434- 
France,  435. 
Great  Britain,  432-434. 
Prussia,  436. 
Purpose,  431,  432. 
Russia,  435. 
Scope,  431,  432. 
Spain,  435. 

Subjects  affected  by,  431,  432. 
United  States,  434,  435. 
Neutral  duties,  395-424. 

Alabama,  case  of  the,  411-417. 
Asylum,  422-424. 
Augmentation  of  force,  407,  408. 
Character,   395,  396. 
Enlistment  of  troops,  397-400. 
Expeditions,  404,  405. 
Geneva  arbitration,  415-422. 
How  determined,  406,  407. 
Horsa,  case  of  the,  409. 
Individuals,    acts   of,    396,    397, 

400-403. 
Itata,  case  of  the,  410,  411, 


602 


INDEX 


Responsibility  of  state,  395. 
Terceira  affair,  408,  409. 
Neutral  rights,  424-431. 
Asylum,  425. 

Captures  in  neutral  waters,  429. 
Character,  424,  425. 
Chesapeake,  case  of  the,  427,  428. 
Coal,  supply  of,  430. 
Florida,  case  of  the,  428,  429. 
Immunities,  424-431. 
Mails,    conveyance   of,   by  neu- 
trals, 464,  465. 
Privateers,  430. 
Prizes,  430. 
Provisions,  429-431. 
Public  armed  vessels,  429,  430. 
Restitution  of  captures,  426,  427. 
Territory,  immunity  of,  426,429, 

430. 
Waters,  immunity  of,  425,  429, 

430. 
Neutral  territory,  425-431. 

Admission   of  belligerent  ships, 

429,  430. 
Alabama,  case  of  the,  411-415. 
Asylum  to  troops  and  ships,  422- 

424. 
Augmentation  of  force   in,   407, 

408. 
Captures  in,  unlavifful,  360,  361. 
Chesapeake,  case  of  the,  427,  428. 
Demands    for    restitution,   by 

vv^hom  made,  427. 
Enlistment  of  troops  in,  397-400. 
Expeditions  originating  in,  404, 

405- 
Florida,  case  of  the,  428. 
Immunity  of,  from  acts  of  hos- 
tility, 424-428. 
Internment  of  troops  in,  429. 
Prize  courts,  may  not  sit  in,  396, 
370. 
Ne%vton,  case  of  the,  73,  74. 
Nicaragua  ship  canal,  63. 
Non-combatants,  312,  313,  504,  505. 
Property  of,  312,  313. 
Protection  of,  312,  313. 
Non-interference,  the  rule  in  interna- 
tional affairs  (see  Interference),  98, 

99- 
Non-intervention    (see   Interference), 

98,  99. 
Nuncios  (see  Ministers),  195. 
Occasional  contraband,  458-460. 
Occupation  (see  Military  Occupation), 

66,  327-336. 


Military,  327-336,    558,  559,  575- 

578. 
Of  territory,    66,    558,    559,  575- 
578. 
Occupied  territory  (see  Military  Occu- 
pation), 327-336,  558,  559,  575-578. 
Offences    in      unoccupied    territory, 

how  punished,  70. 
Opinion  (^ee  Public  Opinion),  27. 
Oppressed   populations,  interference 

in  behalf  of,  109,  no. 
Oriental     monarchies,    international 

law  among,  4. 
Oxford   Conference.     Rules   of   war 
recommended  by,  567-581. 

Pacific  blockade: 
Conditions,  267-269. 
History,  267. 
Instances,  267. 
Rules  of,  268,  269. 
Panama  Congress  (see   Monroe  Doc- 
trine), 113,  note. 
Panama  Ship  Canal,  63. 
Papacy,  influence  upon  international 

law,  13,  14. 
Paper  blockades,  470,  note,  471. 
Paris,  Congress  of,  384. 

Declaration  of,  294,  295,  384-387. 
Paroles  (see  Prisoners  of   War),    317, 
318,  519,  520. 

Acceptance   of,  by  belligerents, 

318,  519,  520. 
Breach  of,  318. 

Penalty,  318. 
By  whom  given,  318,  519,  520. 
Not  compulsory,  318. 
Pledge  of,  318,  519,  520. 
Privilege  of,  318. 
Purpose,  318,  519,  520. 
Parties  to  international  law,  29. 
Partisans,  290,  514. 
Passports,  163,  164,  337-338. 
Applications  for,  164. 
Contents,  163,  164. 
Definition,  163,  164. 
Issue, 164. 
Purpose,  163,  164. 
Peace    Conference    of    1899,    at   The 
Hague,  540. 

Arbitration  Convention,  541. 
Declarations,  564,  565. 
Resolutions,  566. 
Rules  of  war  on  land,  551-561. 
Performance    of    foreign    contracts, 
185. 


INDEX 


603 


Permanent  court  of  arbitration,  258- 
263,  541.-551- 

Appointment   of   members,  260, 
544- 

Composition,  260,  544. 

Constitution,  260,  544. 

Decisions,  261,  262,  549,  550. 

International  bureau,  550,  551. 

Judgment,  binding  effect  of,  261, 
549.  550. 

Powers,  261,  262. 

Procedure,  261,  547-550. 

Purposes,  260,  261,  541. 

Review   of  judgment,   262,   549, 
550. 

Sessions,  547-551. 

Signatory  powers,  262,  note. 

Treaty,  258-263. 

Umpire,  545. 
Permanent  neutrality,  394. 
Permanent  occupation  (j-t-,? Conquest), 

335,  336. 
Permanent  treaties,  240,  241. 
Personal  imposts,  exemption  of  aliens 

from,  154. 
Peterhoff,  case  of  the,  452,  453. 
Pillage  {see  War),  308,  323. 

Offence,  323. 

Penalty  for,  323. 

Repression  of,  323. 
Piracy,  61,  62,  488. 

Definition,  61. 

Search  on  suspicion  of,  488. 

Where  committed,  61,  62. 
Plenipotentiaries  {see  Ministers),  195. 
Political  offences  {see  Extradition),  177. 

Not  extraditable,  177. 
Political  refugees  {see  Asylum),  119. 

Admission,  119. 

Exclusion,  119. 

Extradition  denied,  119. 

Protection,  119. 

Surrender,  119. 
Political  status  of  individuals,  deter- 
mined by  citizenship,  136-138. 
Pope  {see  Roman  Church),  13-15. 

Decision  of,  in  international  con- 
troversies, 13,  14. 

Relations  to  emperors,  14,  15. 
Ports,  see  Territory. 

Anchorage    regulations,    71-74, 

75,  76- 
Crimes  committed  afloat,  71-74. 
Crimes  committed  ashore,  71-82. 
Jurisdiction   of  local   authority, 

71-83,  89. 


Merchant  vessels  in,  71-74. 

Police  regulations,  75-83. 

Public  armed  vessels  in,  74-83, 
89. 
Port  regulations,  observance  of,   by 

ships  of  war,  75. 
Positive  law  of  nations,  28. 
Postliminy,  366-369. 

Applies  to  maritime  capture,  367, 
368. 

Definition,  366. 

Limits  of  rule,  368. 

Modern  rule,  367-369, 

Recapture,  366-369. 

Roman  rule,  366-367. 

Salvage,  367. 
Precedents  as  sources  of  international 

law,  23. 
Pre-emption  {see  Contraband),   460, 

461. 
Primacy  of  the  great  powers,  108,  109. 

Concert  of  action,  108,  109. 

Exercise  of  authority,  109. 

Illustrations,  109. 
Prisoners  of  war,  313-318,  363,  509- 
514,  517-521,  552-554,  578-580. 

Capture,  313,  314. 

Cartels,  316,  317,  339. 

Confinement  of,  315,  316. 

Escape,  315. 

Exchange,  316,  517,  518. 

Internment  in  neutral  territory, 
315,  316,  560,  580,  581. 

Labor  of,  315. 

Paroles,  317,  318,  519-521. 

Private  property  of,  314. 

Release  of,  315,  316,  517,  518. 

Restrictions  on,  315,  316. 

Status  of,  315. 

Support  of,  314. 

Termination    of    captivity,    315- 
318. 

Treatment  of,  314. 

Wounded,   see  Geneva   Conven- 
tion. 
Private  arbitration,  255-258. 

Advantages,  255,  256. 

Binding  force,  256. 

Compared  with  mediation,  257. 

Composition  of  tribunal,  256. 

Decision,  255. 

Fraud,  effect  of,  257, 

Preliminary  treaty,  2156, 

Procedure,  256. 

Tribunal,  how  constituted,  256. 

Validity  of  decision,  256,  257. 


6o4 


INDEX 


Private    international    law  (see  Con- 
flict of  law),  181-188. 

Aliens,  capacity  of,  185-187. 

Based  on  comity,  182. 

Capacity,   rules   respecting   per- 
sons, 186. 

Caste,  not  exterritorial,  185-187. 

Conflict  of  laws,  181-188. 

Contracts,  186,  187. 

Decedents,  estates  of,  186. 

Definition,  181,  182. 

Domicile,  185-187. 

Foreign  judgments,  187-189. 

History,  182-185. 

Judgments,    extra-territorial   ef- 
fects of,  187-189. 

Jus  gentium,  184. 

Lex  rei  sitae,  186. 

Limitation   on   practice   of,  185- 
187. 

Origin,  182-185. 

Persons,  domicile  of,  156,  187. 

Property,  186. 

Process,   186,  187. 

Rank,  no  extra-territorial  effect, 
186. 
Private    property   in    war,    306-213, 

327-336. 
Privateering,  293-295,  360,  373. 
Privateers   {see   Maritime  Captures), 

294,  295. 

Commissioners,  294. 
Declaration  of  Paris  respecting, 

294,  295. 

Employment  of,  293-295. 

Letters  of  marque  and  reprisal, 
294. 

Reasons  for  resort  to,  294. 

Tendency  to  disuse  of,  294,  295. 
Privileges  of  ambassadors,  199-210. 
Prize  {see  Right  of  Search),  356-375- 

Bounty,  373. 

By  whom  made,  293,  295,  360. 

Captures,  358-364. 

Definition,  361. 

Destruction,  361,  364. 

Distribution,  372,  373. 

Domicile  of  owners,  373-375. 

Duty  of  captor,  362,  363. 

Head  money,  373. 

Liability    to    capture,    360,    361, 

373-375- 
Locality  of  capture,  360,  361. 
Nationality  of  ships,  373-375. 
Neutral  waters,  captures  in,  360, 

361 


Prize  courts,  369-375. 
Crews,  362,  363 ! 
Recapture,  366-369. 
Title  to,  where  vested,  361,  362. 
Validity    of,    how     determined, 

369-375- 

Where  made,  360,  361. 
Prize  courts,  369-375  {see  Captures). 

Appeal  in  prize  cases,  372. 

Constitution  of,  369,  370. 

Decisions  of,  effects,  369,  370. 

Distribution,  372,  373. 

Domicile  of  owners,  how  deter- 
mined, 373,  375. 

Effect  of  decisions,  369,  370. 

International    law    applied    by, 
370,  371- 

Judgments,  309,  370,  372. 

Jurisdiction,  369,  370, 

Law  applied  by,  370,  371. 

Nationality  of  ships,  how  deter- 
mined, 373-375- 

Place  of  session,  369,  370. 

Power  of,  369-374. 

Procedure,  371-373. 
Prize  crews,  362,  363. 

Duty  of,  362,  363. 
Prize  money,  372,  373. 
Process,  service  of,  in  ships  of  war, 

76,  77- 
Projectiles,  298-300. 

Bar-shot,  299. 

Bullets,  explosive,  299. 

Chain-shot,  299. 

Explosive,  restriction  on,  299. 

Hot  shot,  299. 

Test  of  conformity,  298,  299. 

Wounds  caused  by,  298,  299. 
Projectiles,    conventions    respecting 
the  use  of: 

St.  Petersburg,  538,  539. 

The  Hague,  564-566. 
Property,   individual    {see  Conflict  of 

Laws),  185. 
Property: 

Booty,  310. 

Captured  on  land,  306-314. 
On  sea,  357-369. 

Claims    for    damage     to,    350- 

354; 

Classification,  306 
Contributions,  310, 
Damage  to,  in  war,  350-354. 
Devastation,  304,  305. 
Loss  of,  mob  violence,  351,  352. 
War,  350-354. 


INDEX 


605 


Mob  violence,   claims   based  on, 

351,  352. 

Pillage,  323. 

Postliminy,  366-369. 

Prize,  357-369- 

Protection  of,  306-314. 

Private,  in  war,  307-314. 

Public,  306,  331,  332,  344,   345. 

Ransom,  363-366. 

Recapture,  366-369. 

Requisitions,  308,  309. 

Responsibility  for   injury  to,  in 
war,  350-354- 
Protectorates: 

Definition,  38. 

Nature  of  the  relation,  38. 

Spheres  of  influence,  109,  no. 
Protocol  {see  Treaties),  248. 
Public   armed    vessels    {see  Exterri- 
toriality). 

Asylum  on  board  of,  82. 

Asylum,  40. 

Baltif?iore,  case  of  the,  80-82. 

Courtesies,  124-127,  130-133. 

Constitution,  case  of  the,  81,  82. 

Exemption  from  process,  76,  77. 

Exterritoriality,  74-83,  89. 

Harbor  regulations,  75,  76. 

In  foreign  ports,  74-83. 

Jurisdiction  over,  69-83,  89. 

Maine,  case  of  the,  77-80. 

Offences  on  shore,  82,  83. 
On  high  seas,  69-74. 

Port,  rules  of,  75,  76. 

Process,  service  of,  76,  77. 

Quarantine,  75. 

Salutes,  128-133. 

Service  of  process  on,  76,  77. 

Sitka,  case  of  the,  77,  78. 

Territorial  character,  69-83,  89. 

Visits  of  courtesy,  130-133. 
Public  ministers  {see  Ministers),    87, 

88,  190-211. 
Public  opinion  as  a  source  of  inter- 
national law,  27. 
Public   property   in    war,    306,    327- 
336. 

Quarantine,  observance  of  rules  of, 

by  ships  of  war,  75. 
Quarter,  297,  511,  512. 

Refusal  of,  forbidden,  297,  298. 

Ransom   {see    Recapture),    364-  366, 
513- 
ContractG,  364,  365. 


Hostages,  366. 

Of  prisoners  of  war,  513. 
Ransom  contracts,  364-366. 

Authority  for,  364,  365. 

Binding  force,  364-366. 

Deviation,  penalty  for,  364,  365. 

Effect,  364,  365. 

Hostages,  366. 

Obligation  of,  364,  365. 

Parties  to,  364,  365. 

Recapture,  effects  on,  365. 

Validity  of,  364,  365. 
Ratification  {see  Treaties),  234,  235. 
Rebellion    {see   Internal    wars),    274- 

279.   523-525- 
Recapture  {see  Postliminy),  366-369. 
By  whom  made,  366-368. 
Effects  of,  366-368. 
Limits  of,  368,  369. 
Locality  of,  368. 
Neutral  ships,  367,  368. 
Postliminy,  366-368. 
Position   of   Great  Britain,  365, 

366. 
Rights  of  original    owner,  367- 

369- 

Salvage,  367,  368. 
Recez  {see  Treaties),  248. 
Reciprocity,   in    foreign   judgments, 
187-189. 

Treaties,  244. 
Reciprocity  treaties  {see  Treaties),  244, 

Interpretation,  244-245. 
Recognition  of  belligerency,  42,   43, 

276-278. 
Recognition  of  independence,  42,  43, 

278,  279. 
Red  Cross,  sign  of  Geneva  Conven- 
tion, 530. 

Arm  badge,  530. 

Brassard,  530. 

Flag,  530. 
Redress  of  wrongs,  250-270. 

Amicable  settlement,  250-254. 

Arbitration,  255-263. 

Diplomatic  adjustment,  250-254. 

Embargo,  266,  267. 

Forcible,  263-270. 

Good  offices,  255. 

Mediation,  255-259. 

Moderation,  duty  of,  253,  254. 

Pacific  blockade,  267-270. 

Reprisals,  264,  265. 

Retorsion,  263,  264. 
Redress,  right  ol  {see  War),  271. 
Refugees  (j-e-t?  Asylum),  118-122. 


6o6 


INDEX 


Relative  rank  of  diplomatic  and  mil- 
itary officers,  214,  tiote. 

Religious  worship,  privilege  of,  208, 
209. 

Representative  government  {see  Suff- 
rage), 31-33- 

Character  (jd't' Ambassadors),  194, 

195- 
Institutions,  31,  33. 
Reprisal,  letters  of  marque  and,  294, 
360,  373- 

By  whom  issued,  294,  360,  373. 
Purpose,  294,  360,  373. 
Reprisals  {see  Retaliation),  264,  265. 
In  peace,  264,  265. 
In  war,  325,  326,  505. 
Requisitions,  308-310. 
By  whom  made,  308. 
Definition,  308. 
How  made,  308. 
Irregular,  how  punished,  308. 
Pillage,  308. 

Policy  of  the  United  States  re- 
specting, 309,  310. 
Property  taken  by,  308. 
Receipts  to  be  given,  308. 
Services,  308,  309. 
Restrictive    interpretation  {see  Trea- 
ties), 247. 
Retaliation  in  war,  325,  326. 

Character  and  purpose,  325,  326. 
Restriction  on  practice,  325,  326. 
When  applicable,  325,  326. 
Retorsion,  263,  264. 
Retraction,  Droit de  {see  Drait  de  Retrac- 
tion). 
Revenue  laws,  searches  in  execution 

of,  487,  488. 
Right  of   convoy   {see  Convoy),  484- 

487. 
Right  of  search  {see  Search),  479-497. 
Approach  to  verify   nationality, 

488. 
Belligerent  character,  479,  480. 
Boarding  party,  duty  of,  481,  482. 
Convoy,  4S4-487. 
Extent,  480-482. 
Resistance  to,  483. 
Searches  in  peace,  487,  488. 
Virginius,  case  of  the,  489-493. 
When  and  where  exercised,  479, 
480. 
Rights  of  states  : 

Classification,  92. 
Comity,  122. 
Duties,  92,  116,  117. 


Enforcement   of   treaty   stipula- 
tions, 94,  95,  102. 
Imperfect,  92,  116. 
Interference,  98-115. 
Moral  claims,  92,  116,  117. 
Non-interference,  98,  99. 
Perfect,  91-115. 
Protection  of  citizens  abroad,  95- 

98. 
Reputation,  94. 
Self-defence,  93,  99-102. 
Self-preservation,  93. 
Rivers  {see  Boundaries),  46-54 
Boundaries,  46,  47. 
Navigable,  48-54. 
Rivers  as  boundaries,  46,  48-54. 
Accretion,  46,  47. 
Changes,  46,  47. 
Demarkation,  46. 
Loss  of  soil,  47. 
Navigation,  46,  48-54. 

Case  of  the  Danube,  48-50. 
Main,  48. 
Meuse,  48. 
Mississippi,  50-52. 
Moselle,  48. 
Neckar,  48. 
Rhine,  48. 
Scheldt,  48. 
St.  Lawrence,  52-54. 
Robbins,  case  of,  177,  178,  note. 
Roman  Church,  13-16. 
Canon  law,  13. 
Ecumenical  councils,  13,  14. 
Influence  of,  upon  international 

law,  13-16. 
Medieval  empire,  14-16. 
Papacy,  13,  14. 
Roman  law,  5-7,  18-22. 

Influence  on  international   law, 

5-7,  9,  10,  13-15,  18-22. 
/us  civile,  20-22. 
fus  feciale,  5,  6,  21. 
Jus  naturcB,  18,  note. 
Source  of  international  law,  20- 
22. 
Royal   persons   {see  Sovereigns),   85, 

86. 
Rules  of  domicile,  158-162. 
Rules  of  interpretation  {see  Treaties), 

245-248. 
Rules   of   war   at   sea  {see  Capture), 

293-295,  357-375- 
Rules   of  war  on  land  {see  Laws  of 
War),  271-349. 
American  instructions,  499-525. 


INDEX 


607 


Hague  Conference,  rules  of  The, 

551- 
Institute  of  International   Law, 

recommendations  of,  566. 
Oxford  rules,  567-582. 

Safe  conducts,  337,  338,  515. 

Abuse  of,  338. 

By  whom  issued,  337,  338. 

Character,  337,  338. 

How  construed,  338. 

Violation  of,  338. 
Safeguards,  337,  338. 

Abuse  of,  338. 

Binding  character,  338. 

By  whom  issued,  338. 

Definition,  338. 

Protection  afforded  by,  338. 

Purpose,  338. 

To  whom  issued,  338. 

Respect  for,  how  received,  338. 

Violation  of,  338. 

Sally^  case  of  the,  73,  74. 
St.  Lawrence   River,  case  of  the  {see 

Rivers),  52-54. 
Salutes  {see  Ceremonial),  124-134. 

Anniversaries,  national,  133. 

Agreement  as  to,  129-130. 

Cannon,  128-130. 

Civil  dignitaries,  129,  130. 

Consuls,  130. 

Diplomatic  officers,  130,  132. 

Forts  and  ships,  129,  130. 

Ministers,  130. 

National,  133. 

On  high  seas,  128,  129. 

On  land,  132-134. 

Personal,   129,  130. 

Relative  rank  of  diplomatic  and 
military  oflScers,  214,  note. 

Return  of,  129,  130. 

To  flrg,  129. 
Salvage  {see  Recapture),  367. 

Amount,  367. 

By  whom  decreed,  367,  368. 

On  neutral  ships,  368,  369. 
Savages,  employment  of,  291,  292. 

Wars  with,  293. 
Sea  laws,  8-10. 

Consolato  del  Alare,  8,  9. 

Customs  of  Amsterdam,  9. 

Guidon  de  la  Mar,  9. 

Hanseatic  League,  g. 

Influence    of,    on    international 
law    8-10. 

Judgments  of  016ron,  8. 


Laws  of  Antwerp,  9. 

Maritime  law  of  Wisbuy,  9. 

Sources,  9,  10. 
Seamen,  impressment  of,  493-497. 
Search,  479-497. 

Approach    to  verify  nationality, 
488. 

Belligerent  character,  479,  480. 

Boarding    party,    duty    of,    481, 
482. 

Convoy,  484-487. 

Exercise  of,  in  peace,  487,  488. 

Extent  of  right,  480-482. 

How  exercised,  479-482. 

Impressment   of    seamen,   495- 

497- 

Nature  of  right,  479,  480. 

Piracy,  488. 

Release  of  vessel,  482. 

Resistance  to,  483. 

Revenue  laws,  487,  488. 

Virginitis,  case  of  the,  489-493. 

When  and  where  exercised,  479- 
482. 
Seas,  see  High  Seas. 

Claims  to  dominion  over,  57,  58. 

Closed  seas,  58,  59. 

Extent,  57. 

Fishery,  60,  61. 

Freedom  of  the,  57. 

Marine  league,  54-56. 

Navigation  of,  57. 

Piracy,  61,  62. 

Ship  canals,  62-63. 

Straits,  59-60. 

Submarine  telegraph  cables,  64- 
65. 
Servitudes  {see  Territory),  68-69. 

Creation  of,  68,  69. 

Definition  of,  68. 

Dominant,  68. 

Examples  of,  69. 

Negative,  69. 

Non-user,  68,  69. 

Positive,  69. 

Servient,  68. 

Termination,  68,  69. 
Semi-civilized  races,  employment  of, 

in  war,  291,  292. 
Semi-sovereign  states,  37-39. 

Confederations,  37,  38. 

Dependencies,  37. 

Dependent  states,  37. 

Protectorates,  37,  38. 

Spheres  of  influence,   109,  no. 

Unions,  37,  38. 


6o8 


INDEX 


Senior,  N.  W.,  statement  of  balance 

of  power,  107,  108. 
Separate  articles  (see  Treaties),  248. 
Shenandoah,  case  of  the  (see   Neutral- 
ity), 413- 
Ship  canals,  62-64. 
Character,  62. 
Construction,  62. 
Navigation,  62,  63. 
Neutrality,  63. 
Operation,  62,  63. 
Nicaragua  Canal,  63. 
Panama  Canal,  63. 
Suez  Canal,  63,  64. 
Ships  of  war  {see  Public  Armed  Ves- 
sels), 69-89. 
Shipwrecked   sailors   {see  Asylums), 

120. 
Sieges  (see  Blockades),  301-303,  304. 
Sitka,  case  of  the,  77,  78. 
Slavery,  not  recognized   at   interna- 
tional law,  186,  508. 
Small-arm  projectiles,  limitations  on, 

538.  566- 
Conference  at  The  Hague.  566. 
St.  Petersburg  conference,  538, 

539- 
Sound  dues,  59-60. 
Sources  of  international  law: 

Arbitral  decisions,  24,  25. 

Conventions,  23,  24. 

Custom  and  usage,  23. 

Decisions  of  municipal  courts, 25. 

Diplomatic   correspondence,  25, 
26. 

History,  26. 

Municipal  law,  24. 

Precedents,  23. 

Public  opinion,  27. 

State  papers,  25,  26. 

Text-writers,  26,  27. 

Treaties,  23,  24. 

Usage,  23. 
Sovereign  powers,  39-43. 

Acquisition  of,  41,  42. 

Classification,  40. 

Distribution,  40. 

Execution  of,  40. 

Execution,  40,  41. 

Exercise  of,  40. 

Extent,  39. 

Legislation,  40. 

Loss  of,  42. 

Judicial,  41. 

Recognition,  42. 

Sources,  32,  33,  40, 


Sovereigns   in  foreign   territory   (see 
Exterritoriality). 

Christina,  case  of  Queen,  86,  note. 
Consent  required,  85,  86. 
Control  over  retinue,  85,  86. 
Entry  without  consent,  87. 
Exemptions,  motive  and  extent, 

85-87. 
Exterritoriality  of,  85-87. 
Functions  of,  85-87. 
Honors  to,  87. 
Restrictions  upon,  85-87. 
Sovereign  States,  (see  States). 

Acquisition   of   sovereignty,  41, 

42. 
Boundaries,  44-48. 
Changes  in,  43. 
Dependent  states,  37,  38. 
Equality  of,  36. 
Extinction  of  sovereignty,  43. 
Independence,  36. 
Internal  changes,  43. 
Loss  of  sovereignty,  42. 
Recognition,  42. 
Separation  of,  44. 
Servitudes,  68,  69. 
Sovereignty,  36. 
Sources  of  sovereignty,   32,   33, 

40. 
Territory,  44-90. 
Sovereignty,  34-43. 

Acquisition,  41,  42. 
Definition,  34,  35. 
Loss  of,  42. 
Recognition  of,  42,  43. 
Spheres  of  influence,  109,  no. 
Based  upon  treaties,  109. 
Extent  of  relation,  109,  no. 
Nature  of  influence,  109,  no. 
Territorial  in  character,  109. 
Special  truces  (see  Truces),  339,  340. 
Spies,  321,  515. 
Offence,  321. 
Penalty,  321. 

Service  as,  not  compellable,  321. 
Service,  compensation  for,  321. 
Trial,  321. 
Sponsions,  228.     See  Treaties. 
Springbok,  case  of  the,  45CH452. 
States  : 

Attributes  of,  34-36. 
Boundaries,  44-56. 
Citizens,  31,  32. 
Confederations,  37-39. 
Creation  of,  41,  42. 
Definition,  31, 


INDEX 


609 


Dependent,  37-39- 
Equality  of,  36. 
Exterritoriality,  69-90. 
Extinction  of,  42. 
Governments,  32-34. 
Independence  of,  36. 
Nation,  31. 
Neutral,  36. 
Protectorates,  38,  39. 
Responsibility  of,  for  war  losses, 

350-354- 
Servitudes,  69,  70. 
Sovereignty,  34-36. 
Sovereign  States,  34-36. 
Subjects,  31,  32. 
Territory,  44-90. 
State  papers,  as  a  source  of  interna- 
tional law,  25,  26. 
Correspondence,  25. 
Diplomatic  affairs,  25. 
Opinions  of   Attorneys-General, 

Publication  of,  25-26. 
Status  of  Persons,  136-138. 

Civil,  136-138. 

Legal,  136-138. 

Political,  136-138. 
Straits  {see  Territory),  44,  45,  59,  60. 

Boundaries,  45,  59,  60. 

Danish  Sound  Dues,  60. 

Jurisdiction  over,  59-60. 

Navigation  of,  59-60, 

Ownership  of,  59. 
Strangers  (see  Aliens). 

Subjects  {see  Citizens),  135-164. 
Submarine  Telegraph  Cables,  64-65. 

Construction,  64,  65. 

Operation,  64,  65. 

Treaty  respecting,  64-65. 
Suez  Canal,  63,  64. 

Neutrality  of,  61,  64. 

Treaty  \n  reference  to,  63-64. 
Suffrage  {see  Governments),  31,  32. 

By  whom  exercised,  31-33. 

How  regulated,  31-33. 

Not  essential  to  citizenship,  31- 

33- 
Surgeons,  neutralization  in  war,  529- 

535- 
Surrender  of  criminal  offenders  {see 

Extradition). 
Suspensions  of  arms  {see  Truces),  339- 

341,  521-523- 

Telegraph     cables     {see    Submarine 
Cables),  64, 65. 

39 


Torceira  afTair  {see  Neutrality),  408, 
Territorial  character: 

Merchant  vessels,  69-74. 

Public  armed  vessels,  69-89. 
Territorial  servitudes,  68,  69. 
Territory,  44-90. 

Acquisition,  66,  67. 

Bays,  45. 

Boundaries,  44-47,  59,  60. 

Conquered,  343,  349. 

Definition,  44,  45. 

Gulf,  45. 

Land,  44-45- 

Loss  of,  66,  67. 

Marine  league,  54-56. 

Navigable  rivers,  46-54. 

Neutral,  426. 

Ocean,  45,  57-65. 

Occupied,  327-336. 

Rivers,  46-54. 

Seas,  45. 

Servitudes,  68,  69. 

Ship  canals,  62-64. 

Straits,  59,  60. 

Water,  44,  45. 

What  constitutes,  44,  45. 
Teutonic  migrations,  10,  11. 

Effects  of,  on  development  of  in- 
ternational  law,  10,  11. 
The    Hague,   Peace   Conference    at, 
258-263,  540,  566. 

Conventions  of,  540-564. 

Declarations,  564,  565. 

Recommendations,  566. 
Text-writers  as   sources   of   interna- 
tional law,  26,  27. 

Agreement  of,  26,  27. 

Authority  of,  26,  27. 

Classification  of,  26. 

Do  not  make  law,  27, 

Opinions  of,  26,  27. 
Three-mile  limit  {see  Marine  League), 

54-56- 
Torpedoes,  299-301. 

Use  of,  in  land  operations,  300, 

301. 
Maritime  war,  299,  300. 
Treaties,  223-249. 

Accession    of   third    parties    to, 

235,  236. 
Alliance,  241-243. 
Alternate,  use  of  the,  234. 
Binding  force  of,  229. 
Cartels,  241. 
Capitulations,  241. 
Classifications,  240,  341. 


6io 


INDEX 


Conferences,  230,  231. 
Congresses,  230,  237. 
Consent  of  parties,  228. 
Consular  jurisdiction,  218,  221. 
Contracts  of  states,  223-224. 
Effect  of  war  on,  239,  240,  285, 

286. 
Enforcement  of  stipulations,  94, 

95,  102. 
Execution  of,   228,  229. 
Extradition,  174-178. 
Form  of,  234. 
Guarantee,  243,  244. 
Interference  in  accordance  with, 

102. 
Interpretation,  rules  of,  245-248. 
Language  used  in,  233. 
Most  favored  nation  clause,  248, 

249. 
Naturalization,  142-151. 
•  Negotiation  of,  229-234. 
Objects,  241-245. 
Permanent,  240,  241. 
Power  to  make,  223,  226,  227,  228. 
Preparation,  232. 
Protocols,  248. 
Ratification,  234,  235. 
Recez,  248. 
Reciprocity,  244,  245. 
Right  to  make,  224. 
Separate  articles,  248. 
Signatures,  234. 
Sources  of  international  law,  23, 

24. 
Sponsions,  228. 
Suspension  of,  239,  240. 
Termination,  236-240. 
Territorial  acquisition  by,  66. 
Transitory,  240. 
Validity  of,  227-229. 
War,  effects  of,  on,  239,  240. 
Treaties  of  peace  (see  Treaties),  342- 

349- 
Acquisition  of  territory  by,  66. 
Allegiance    of    inhabitants,   346, 

347. 
Amnesty,  343,  344. 
Binding  force,  342. 
Causes  of  war,  343. 
Conquests,    treatment    of,    343- 

349- 
Effects,  343-349- 
Execution,  342,  343. 
Inequality  of  parties,  342. 
Municipal  law^s,  effects  on,  348, 

349. 


Negotiation,  342,  343. 

Obligation,  342. 

Occupied  territory,  treatment  of, 
344- 

Political  changes,  343. 

Private  property,  345,  346. 

Public  property,  344,  345. 

Ubi  possidetis,  rule  of,  344,  345. 

War,  effects  on,  285,  286. 

When  binding,  343. 
Treaty  making  power  {see  Treaties), 
224-227. 

Extent,  227. 
Troops,  461-465. 

Conveyance  of,  by  neutral,  461- 
464. 

Definition,  462. 

Enlistment  of,  in    neutral   terri- 
tory, 397-400. 

Friendship,  case  of  the,  463. 

Greta,  case  of  the,  463,  464. 

Internment  of,    in    neutral    ter- 
ritory, 315,  316. 

Penalty  for  neutral  conveyance, 
461-464. 
Truces,  339-341,  522,  523. 

Armistices,  339-341,  521-523. 

Besieged  places,  340,  341. 

By  whom  made,  339,  340. 

Captures  during,  341. 

Flags  of  truce, 337,  339,  340,  518, 

519- 
General,  341. 

Obligatory  force,  339,  340. 
Parties  to,  339,  341. 
Resumption   of   hostilities,  339- 

343- 
Special,  339,  340. 
Suspensions  of  arms,  340. 
What  may  be  done  during,  340, 

341. 
When  operative,  339-341. 

Ubi possidetis,  rule  of,  344,  345. 
Application,  344,  345. 
Definition,  344,  345. 
Property  of  enemy,  344,  345. 
Ungar,  case  of,  151. 
Uniform  : 

Use  of  enemy's,  296. 
In  war,  290. 
United  States  Consuls,  how  appoint- 
ed, 214,  215. 

Capture  of  property  at  sea,  posi- 
tion respecting,  354. 
Extradition  treaties  of,  177,  178. 


INDEX 


6ii 


Interstate,    extradition   in,    178- 

180. 
Naturalization  treaties  of,  143. 
Neutrality  laws  of,  434,  435. 
Neutral  policy  of,  380,  381. 
Unoccupied  territory,  offences  in,  70. 
Usage   as  a  source  of  international 

law,  23. 
Usages  of  war  (see  Law  of  War),  286- 

347- 

On  land,  286-347. 
On  the  sea,  305,  306. 

Vattel,  statement  of  balance  of  power, 

107. 
Venezuela    boundary,    case    of    (see 

Monroe  Doctrine),  115. 
Vice-consuls  (see  Consuls),  211-221. 
Violence,  crimes  of,  in  war,  323,  324. 

Punishment  of,  323,  324. 
Virginius,  case  of  the,  489-493. 
Visitation  (see  Search),  493-497. 

Assertion  of  right  by  Great  Brit- 
ain, 493-495- 
Denial  of  right  by  United  States, 

493-495- 
History,  494,  495. 
Imprisonment   of  seamen,   495- 

497- 

Legality  of  right,  493,  494. 
Visits  (see  Ceremonial),  130-134. 

Ambassadors,  130,  131. 

Boarding,  130. 

Ceremonial,  130-134. 

Civil  officials,  130-134. 

Consuls,  130-134. 

Diplomatic  officers,  130-134 

Governors-general,  134. 

Military,  130-134. 

National  anniversaries,  133. 

Naval,  13Q-134. 

Territorial  governors,  134. 
War: 

Armistice,  521,  522. 

Balloons,  use  of,  in,  299. 

Belligerents,  275,  276. 

Besieged  places,  301-303. 

Booty,  310,  311,  510. 

Capitulations,  339,  521-522,  557. 

Cartels,  339. 

Cartel  ships,  317. 

Causes  of,  272. 

Claims  based  on,  350. 

Classification,  274. 

Collective  responsibility  of  com- 
munities, 324,  325. 


Combatants,  312. 
Contributions,  310. 
Crimes  against  laws  of,  318-326. 
Deceit  in,  296. 
Declaration  of,  280,  281. 
Definition,  271,  272. 
Devastation,  304,  305. 
Effects  of,  283-286. 

As  to  persons,  283-285. 

As  to  property,  283-285. 

As  to  treaties,  239-240,  285- 
286. 
Flags  of  truce,  337,  517,  518,  556, 

557,  573,  574- 

Forces    employed    in,    288-295, 

551,  552. 
Guerillas,  322,  514. 
Guides,  516. 

Hostilities,  555,  556,  569,  570. 
Instruments  used  in,  298-302. 
Intercourse    of    belligerents    m, 

336,  518,  519,  521-523. 
Internment    of    prisoners,    315, 

316,  560,  581. 
Land,  rules  of,  2S6-336. 
Laws  of,  286-336. 
Leve'e  en  masse,  290,  551-570. 
Licenses  to  trade,  338,  339. 
Martial  law,  501,  502. 
Military  jurisdiction,  318-321. 
Military  necessity,  503,  504. 
Military    occupation,     327-336, 

558,  575-578- 
Military  rule,  327-336. 

Moral  considerations  involved  in, 

273,  274- 
Neutrals  (see  Neutrality),  276. 
Non-combatants,    312,    313,    504, 

505. 
Notification  of  a  resort  to,  281. 
Paroles,  317,  318,  519-521. 
Partisans,  290,  514. 
Pillage,  323. 
Prisoners,  312-313,  509-514,  517- 

521,  551-554,  579,  580. 
Property  of  enemy,  306-311,  506, 

507-509. 

Individuals,  507,  508. 
Quarter,  297,  511,  512. 
Recognition  of  belligerency,  276- 

279. 

Independence,  279. 
Requisitions,  308-310,  559. 
Responsibility  for  a  resort  to,  273. 
Restrictions  on  operations,  295- 

298. 


6l2 


INDEX 


Retaliation,  325,  326,  505. 
Right  to  declare,  279. 
Rightfulness  of,  272. 
Rules  of,  286-336. 
Safe  conducts,  337,  338,  515. 
Safeguards,  337,  338. 
Savages,  292,  293. 
Sea,  rules  of  war  at,  305,  306. 
Semi-civilized  races,  291,  292. 
Spies,  321,  322,  535,  556-573- 
Termination  of,  342-349. 
Torpedoes,  299-301. 
Treaties  of  peace,  342-349. 
Truces,  337-340,  521-523. 


War  claims,  350. 

War   ships  {see   Public  Armed  Ves- 
sels). 
War  rebels,  515. 
War  traitors,  514,  515, 
Weapons  in  war : 

Character,  298,  299. 
Restriction    on    use    of,    298- 

300. 
Torpedoes     and     mines,     299- 
301. 
Wildenhus,  case  of,  72,  73. 
Yucatan,    case   of  {see  Monroe  Doc 
trine),  113,  114. 


THE   END 


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